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UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


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A  NOTABLE  LIBEL  CASE 


A 

NOTABLE  LIBEL  CASE 

The  Criminal  Prosecution  of 
THEODORE  LYMAN  JR<  by  DANIEL  WEBSTER 

in  the 

Supreme  Judicial  Court  of  Massachusetts 
November  Term  1828 


JOSIAH    H.   BENTON  JR- 


BOSTON 

Charles  E.  Goodspeed 
1904 


Copyright,  1904,  by  JOSIAH  H.  BENTON,  JR- 


D.  B.  UPDIKE,  The  Merrymount  Press,  Boston 


5 

tf 


^  LIST  OF  ILLUSTRATIONS 

FACING  PAGE 

o 

DANIEL  WEBSTER  2 

From  a  Painting  in  the  SUPREME  JUDICIAL  COURT,  Boston 

THEODORE  LYMAN,  JR-  6 

From  a  Bust  in  the  possession  of  Mrs.  G.  ROWLAND  SHAW,  Boston 

DANIEL  DAVIS  52 

From  a  Painting  in  the  possession  of  Captain  CHARLES  HENRY 
J  DAVIS,  U.  S.  N. 

,^        SAMUEL  HUBBARD  80 

i\r^ 

From  a  Painting  in  the  possession  of  WALTER  BUCK,  Andover, 
Massachusetts 

ISAAC  PARKER  96 

From  a  Painting  in  the  SUPREME  JUDICIAL  COURT,  Boston 


197009 


A  NOTABLE  LIBEL  CASE 


you,  Mr.  Webster,  at  that,  or  any  other 
period,  ever  enter  into  any  plot  to  dissolve 
the  Union?" 

Strange  as  it  may  now  seem,  the  Solicitor-General 
of  Massachusetts  deemed  it  necessary  to  put  this 
question  to  Daniel  Webster,  as  a  witness  for  the  Gov- 
ernment upon  the  trial  of  a  criminal  prosecution  in 
the  Supreme  Judicial  Court.  Mr.  Webster  answered, 
"I  did  not,  sir." 

The  trial  was  of  an  indictment  of  Theodore  Ly- 
man,  Jr.,  for  alleged  criminal  libel  upon  Daniel  Web- 
ster, as  a  Senator  of  the  United  States,  in  1828.  The 
indictment  alleged  that  Lyman  had  charged  Web- 
ster with  having  conspired  with  other  leading  Fed- 
eralists in  1807-1808  to  break  up  the  Union  and  re- 
annex  New  England  to  England. 

This  was  a  notable  case,  not  only  on  account  of 
the  high  standing  of  Mr.  Lyman,  the  respondent,  and 
of  Mr.  Webster,  the  prosecutor,  but  also  on  account 
of  the  legal  and  political  questions  raised  and  dis- 
cussed. The  trial  embraced  in  its  scope  the  political 
history  of  the  country  during  the  tumultuous  period 


(     2     ) 

from  1806  to  1816,  the  Embargo  Acts,  and  the  resist- 
ance to  them,  the  conduct  of  the  Hartford  Conven- 
tion, the  construction  of  the  Federal  Constitution, 
the  power  of  the  United  States  "to  raise  and  support 
armies,"  and  the  right  of  the  States  to  secede  from  the 
Union.  Chief  Justice  Parker,*  who  presided,  had,  as  a 
member  of  the  Supreme  Judicial  Court,  in  1812,  sol- 
emnly advised  the  Governor  and  Council  that  the 
President  of  the  United  States  could  constitutionally 
call  out  State  militia  for  national  defence  and  war 
only  at  the  will  of  the  Governor  of  the  State,  t  The 
leading  counsel  for  the  defence  (afterwards  a  Justice 
of  the  Supreme  Judicial  Court)  maintained  that  the 
States  had  a  constitutional  right  to  secede,  and  in 
argument  stated  this  doctrine  in  the  plainest  terms, 
without  correction  by  the  Court,  or  dissent  from  Mr. 
Webster  or  the  Solicitor-General. 

The  trial  excited  not  only  local,  but  national,  inter- 

*  Isaac  Parker  was  born  in  Boston,  June  17,  1768,  was  graduated  from 
Harvard  in  1786,  was  a  member  of  the  House,  1791-1795,  State  Senator 
in  1796,  member  of  Congress  from  the  District  of  Maine,  1797-1799,  voted 
and  spoke  for  the  Alien  and  Sedition  Acts  and  failed  of  a  reelection.  In 
1799  President  Adams  appointed  him  United  States  Marshal  forthe  District 
of  Maine,  which  office  he  held  until  1803,  when  he  was  removed  by  President 
Jefferson.  He  was  Associate  Justice  of  the  Supreme  Judicial  Court,  1806- 
1814,  and  Chief  Justice,  1814-1830.  He  was  the  first  Royall  professor  in 
Harvard  Law  School,  filling  the  place  from  1816  to  1827.  He  was  a  trustee 
of  Bowdoin  College  for  eleven  years,  and  an  overseer  of  Harvard  for  twenty- 
two  years.  He  was  President  of  the  Constitutional  Convention  of  1820, 
and  died  in  the  office  of  Chief  Justice  at  Boston,  May  26,  1830. 
t  Massachusetts  Acts  and  Resolves,  1812,  p.  78.  "Speech  of  Governor 
Strong.  Opinions  of  Justices  of  Supreme  Judicial  Court,  and  other  docu- 
ments. Published  by  order  of  the  General  Court  1812." 


(     3     ) 

est  at  the  time,  and  yet  the  name  of  the  person  prose- 
cuted and  the  real  facts  of  the  trial  have  been  so  far 
suppressed  in  general  history  that  but  few  of  even 
the  best  informed  persons  are  now  acquainted  with 
them.  Edward  Everett  and  Henry  Cabot  Lodge  do 
not  mention  the  trial  in  their  biographies  of  Web- 
ster. Neither  Lanman,  Harvey,  nor  any  other  bio- 
grapher of  Webster,  except  Curtis,  says  anything  of 
it,  and  it  is  not  mentioned  in  any  published  or  un- 
published Webster  papers  or  correspondence,  so  far 
as  I  can  ascertain.  It  is  mentioned  in  the  famous 
diary  of  John  Quincy  Adams,  where  he  wrote : "  Jan- 
"uary  16,  1829,  Mr.  Clay  said  he  had  mentioned 
"  to  Mr.  Webster  Lyman's  libel  and  my  publication 
"  of  21st  October,  and  that  Mr.  Webster  professed 
"  to  have  no  unfriendly  feeling  to  me,  but  that  he 
"  seemed  to  regret  his  having  prosecuted  Lyman." 

And  again  on  March  21,  1829,  after  Mr.  Adams 
had  ceased  to  be  President,  he  wrote  in  his  diary: 
"  Mr.  Webster  called  also  to  take  his  leave.  I  told 
"  him  that  in  the  publication  in  the  National  Intelli- 
"  gencer  of  21st  October  last  I  had  not  the  most  dis- 
"  tant  reference  to  him,  and  he  said  that  he  had  no 
"  feeling  of  dissatisfaction  from  it  regarding  me." 

But  Mr.  Adams  says  Webster  spoke  with  great 
bitterness  of  Harrison  Gray  Otis*  and  other  Federal- 

*  Harrison  Gray  Otis  was  born  in  Boston,  October  8, 1765,  was  graduated 


(     4     ) 

ists,  and  regretted  the  publication  of  Mr.  Adams, 
because  he  thought  it  would  tend  to  cause  the  Hart- 
ford Conventionists  and  the  Jackson  people  to  unite. 
Even  Mr.  Curtis,  in  his  extended  biography  of 
Webster,  while  he  speaks  of  the  case,  carefully  sup- 
presses the  name  of  the  person  indicted,  referring  to 
him  only  as  "a  gentleman  of  high  social  standing." 
He  says : "  In  the  Autumn  of  1828,  Mr.  Webster  pro- 
secuted a  gentleman  of  high  social  standing  in  Bos- 
ton by  indictment  for  a  libel."  He  then  gives  two 
pages  to  a  statement  of  the  case  from  the  Webster 
side,  and  concludes  by  saying  that,  while  the  jury  did 
not  agree,  ten  were  for  conviction,  and  adds  in  a  note 
that  "a  clearer  case  of  libel  could  not  well  exist."  Mr. 
Curtis  even  suppresses  Mr.  Lyman's  name  in  print- 
ing a  letter  from  Henry  Clay  to  Webster,  of  No- 
vember 30,  1828,  in  which  Clay  says:  "You  have  all 
my  wishes  for  success  in  the  prosecution  against  Ly- 
man."  Curtis  quotes  it  "in  the  prosecution  against 
."*  This  suppression  of  Mr.  Lyman's  name, 

from  Harvard,  1783,  appointed  United  States  District  Attorney,  1796, 
was  a  member  of  the  House,  1796,  member  of  Congress,  1797-1799  and 
1799-1801,  member  of  the  House,  1802,  -3,  -4  and  1813,  and  was  Speaker 
in  1803  and  1804.  He  was  State  Senator  in  1805,  -6,  -7,  -8,  -9,  -10,  -11, 
-12,  -14,  -15  and  1816,  and  was  President  of  the  Senate  in  1805, 1808, 1809 
and  1810.  He  was  Presidential  Elector  in  1812,  and  United  States  Senator, 
1817-1822.  He  was  a  member  of  the  Hartford  Convention  in  1814,  and 
one  of  the  three  Commissioners  sent  by  Massachusetts,  January  31,  1815, 
to  negotiate  with  the  National  Government  as  to  the  conduct  of  the  war. 
He  was  Mayor  of  Boston  in  1829,  1830  and  1831,  and  died  in  Boston, 
October  28,  1848. 
*  Curtis's  Life  of  Webster,  vol.  i,  pp.  331,  336. 


(     5     ) 

while  perhaps  intended  to  avoid  injury  to  the  feelings 
of  his  family  and  friends,  recently  provoked  inquiry 
from  a  prominent  gentleman  in  a  Southern  State  as  to 
the  name  of  the  "  gentleman  of  high  social  standing" 
prosecuted  by  Webster.  This  inquiry  led  me  to  in- 
vestigate the  trial,  its  causes  and  circumstances,  and 
also  to  examine  other  matters  connected  with  it. 

An  examination  of  the  Court  records  shows  that 
the  person  prosecuted  was  Theodore  Lyman,  Jr.  A 
pamphlet,  now  rare,  by  John  W.  Whitman,  reporting 
the  trial,  and  the  Boston  Daily  Advertiser  of  Decem- 
ber 22, 1828,  give  what  are  apparently  fairly  accurate 
accounts. 

The  prosecution  was  really  only  an  echo  of  the 
Napoleonic  wars.  If  there  had  been  no  struggle  of 
Napoleon  against  England  and  the  other  European 
powers,  there  would  have  been  no  Berlin  and  Mi- 
lan Decrees  by  Napoleon,  no  Orders  in  Council  by 
George  III,  and  no  Embargo  Acts  under  Thomas 
Jefferson ;  there  would  have  been  no  combination  in 
New  England  against  the  Embargo  Acts,  and  Dan- 
iel Webster  would  not  have  been  charged  with  com- 
bining with  other  leading  Federalists  to  break  up 
the  Union  on  account  of  the  Embargo  Acts.  Lyman 
was  said  by  Webster  to  have  made  this  charge  against 
him,  and  it  was  for  this  that  Webster  caused  Lyman 
to  be  indicted  and  tried. 


The  circumstances  of  the  publication  of  the  alleged 
libel  and  of  the  prosecution  were  these : 

In  1828,  John  Quincy  Adams  was  the  Federalist, 
and  Andrew  Jackson  the  Democratic  (or,  as  it  was 
then  called,  Republican)  candidate  for  President. 
Adams,  who  was  chosen  to  the  United  States  Senate, 
in  1803,  as  a  Federalist,  had  voted  for  the  Embargo 
Acts  of  1807  and  1808,  and  thereby  provoked  the 
bitter  hostility  of  the  Massachusetts  Federalists.  In 
1828,  Webster  and  most  Federalists  in  Massachu- 
setts supported  Adams  for  the  Presidency  as  against 
Jackson,  but  other  Federalists,  who  had  not  forgiven 
Adams  for  his  support  of  the  Embargo  Acts,  sup- 
ported Jackson,  and  established  a  semi- weekly  paper 
in  Boston  called  the  "Jackson  Republican,"  for  the 
purpose  of  opposing  Adams  and  supporting  Jackson.* 
Theodore  Lyman  was  one  of  the  proprietors  of  this 
paper.  October  29, 1828,  there  was  published  in  the 
Jackson  Republican  the  following  article: 
"  WE  publish  this  morning  a  letter  of  December, 
"  1825,  of  Mr.  Jefferson  to  Mr.  Giles,  and  Mr.  Adams's 
"  own  statement,  published  last  week  in  the  National 

*  January  21,  1829,  after  the  election  of  Jackson,  this  paper  was  called 
"The  Evening  Bulletin  and  United  States  Republican."  April  29,  1830, 
the  paper  was  transferred  to  the  New  England  Palladium,  which  had  been 
established  as  the  Massachusetts  Mercury  in  1793,  and  was  in  1830  merged 
in  the  Columbian  Centinel.  In  1840  the  Centinel  was  merged  in  the  Boston 
Advertiser,  which  was  established  under  that  name  March  3,  1813,  and 
was  the  successor  of  several  Boston  papers  bearing  the  Advertiser  name, 
commencing  with  the  Independent  Advertiser,  established  January  4, 1748. 


THEODORE  LYMAN,  J»- 

From  a  Bust  in  the  possession  of  Mrs,  G.  Howland  Shaw,  Boston 


(     7     ) 

"  Intelligencer  at  Washington,  concerning  disclosures 
"  said,  many  months  ago,  to  have  been  made  by  Mr. 
"  Adams  to  Mr.  Jefferson,  in  regard  to  the  conduct  of 
"  the  leaders  of  the  Federal  party  in  New-England, 
"  during  the  whole  course  of  the  commercial  restrictive 
"  system.  Mr.  Adams  confirms  in  his  statement,  in  a 
"  positive  and  authentic  form  and  shape,  the  very  im- 
"  portant  fact,  that  in  the  years  1807  and  1808,  he  did 
"  make  such  disclosures.  The  reader  will  observe,  that 
"  Mr.  Adams  distinctly  asserts,  that  Harrison  Gray 
"  Otis,  Samuel  Dexter,*  William  Prescott,  Daniel 
"  Webster,  Elijah  H.  Mills,  Israel  Thorndike,  Josiah 
"  Quincy,  Benjamin  Russell,  John  Welles,  and  others 
"  of  the  Federal  party  of  their  age  and  standing  were 
"  engaged  in  a  plot  to  dissolve  the  Union  and  to  re- 
"  annex  New  England  to  Great  Britain;  and  that  he 
"  (Mr.  Adams)  possessed  'unequivocal  evidence'  of 
"  that  most  solemn  design.  The  reader  will  also  observe, 
"  that  in  the  statement,  just  published,  of  Mr.  Adams, 
"  there  is  no  intimation  whatever,  that  he  does  not  still 


*  Samuel  Dexter  was  born  in  Boston,  May  14,  1761,  was  graduated  from 
Harvard,  1781,  was  State  Senator,  1792,  member  of  Congress,  1793-1795, 
United  States  Senator,  1799  to  June,  1800,  when  he  resigned  and  became 
Secretary  of  War,  which  office  he  held  until  December,  1 800,  when  he  became 
Secretary  of  the  Treasury,  holding  that  office  until  March,  1801.  He  was  a 
member  of  the  Governor's  Council  in  1804  and  1805.  He  was  one  of  the  most 
eminent  lawyers  and  advocates  of  his  time.  Mr.  Webster  said  of  him  after 
his  death :  "The  earnestness  of  his  convictions  wrought  conviction  in  others. 
One  was  convinced  and  believed  and  assented  because  it  was  gratifying  and 
delightful  to  think  and  believe  in  unison  with  an  intellect  of  such  evident 
superiority."  He  died  in  Athens,  New  York,  May  4,  1816. 


(     8     ) 

"  believe  what  he  revealed  to  Mr.  Jefferson  and  Mr. 
"  Giles  twenty  years  ago.  All  the  gentlemen  we  have 
"  mentioned  above,  are,  with  one  exception,*  still  liv- 
"  ing,  and,  with  two  exceptions,  are  active  and  ardent 
"  political  friends  of  Mr.  Adams.  We  here  beg  leave 
"  to  ask,  why  Mr.  Adams's  statement  has  been  with- 
"  held  from  the  public  eye  more  than  a  year?  Why  it 
"  has  been  published  only  one  fortnight  before  the 
"  election  for  President  all  over  the  country  ?  Why  for 
"  three  years  he  has  held  to  his  bosom,  as  a  political 
"  counsellor,  Daniel  Webster,  a  man  whom  he  called, 
"in  his  midnight  denunciation,  a  traitor  in  1808? 
"  Why  in  1826  he  paid  a  public  compliment  to  Josiah 
"  Quincy,t  in  Faneuil  Hall,  whom  he  called  a  traitor 
"  the  same  year?  And  as  the  last  question,  why  dur- 
"  ing  the  visits  he  has  made  to  Boston,  he  always  met 
"in  friendly  and  intimate  and  social  terms  all  the 
"  gentlemen,  whose  names  a  few  years  before,  he 
"  placed  upon  a  secret  record  in  the  archives  of  our 
"  Government  as  traitors  to  their  Country  ?  Why  did 
"  he  eat  their  salt,  break  their  bread  and  drink  their 
"wine?" 

*  Samuel  Dexter. 

t  Josiah  Quincy  was  born  in  Boston,  February  4, 1772,  was  graduated  from 
Harvard,  1790,  was  State  Senator,  1804,  and  member  of  Congress,  1805- 
1813,  State  Senator,  1813,  -14,  -15, -16, -17, -18  and  1819.  He  was  a  mem- 
ber of  the  House  in  1820  and  1821,  and  was  Speaker  in  1821.  He  was  a 
member  of  the  Constitutional  Convention  of  1820,  a  judge  of  the  Municipal 
Court  of  the  city  of  Boston,  1822,  Mayor  of  Boston,  1823-1828  and  Presi- 
dent of  Harvard,  1829-1845.  He  died  in  Quincy,  July  1,  1864. 


(     9     ) 

The  letter  of  Mr.  Jefferson  referred  to  in  this  arti- 
cle, and  published  in  the  same  issue  of  the  Jackson  Re- 
publican, stated  that  during  the  time  of  the  Embargo 
Acts  Mr.  Adams  called  on  Mr.  Jefferson  and  stated 
"  That  he  had  information  of  the  most  unquestionable 
"  certainty  that  certain  citizens  of  the  Eastern  States, 
"  (I  think  he  named  Massachusetts  particularly)  were 
"  in  negotiation  with  the  agents  of  the  British  Gov- 
"  ernment,  the  object  of  which  was  an  agreement 
"  that  the  New  England  States  should  take  no  further 
"  part  in  the  war  then  going  on;  that,  without  for- 
"mally  declaring  their  separation  from  the  Union  of 
"  the  States,  they  should  withdraw  from  all  aid  and 
"  obedience  to  them ;  that  their  navigation  and  com- 
"  merce  should  be  free  from  restraint  or  interruption 
"  by  the  British;  that  they  should  be  considered  and 
"  treated  by  them  as  neutrals,  and  as  such  might  con- 
"  duct  themselves  towards  both  parties ;  and  at  the 
"  close  of  the  war  be  at  liberty  to  rejoin  this  Confed- 
"  eracy." 

It  will  be  observed,  however,  that  neither  this  let- 
ter of  Mr.  Jefferson,  nor  the  statement  of  Mr.  Adams 
referred  to  in  this  article  as  published  in  the  National 
Intelligencer,  and  reprinted  in  the  Jackson  Repub- 
lican, named  any  persons  who  had  "engaged  in  a  plot 
to  dissolve  the  Union,"  and  yet  the  article  said  that 
"  Mr.  Adams  distinctly  asserts,  that  Harrison  Gray 


"  Otis,  Samuel  Dexter,  William  Prescott,*  Daniel 
"  Webster,  Elijah  H.  Mills,  Israel  Thorndike,  Josiah 
"  Quincy,  Benjamin  Russell,  John  Welles,t  and 
"  others  of  the  Federal  party,  of  their  age,  and  stand- 
"  ing,  were  engaged  'in  a  plot  to  dissolve  the  Union,'" 
etc.,  and  "that  he,  Mr.  Adams,  'possessed  unequivo- 
cal evidence  of  that  most  solemn  design.'"  The  ar- 
ticle twice  specifically  named  Daniel  Webster,  ask- 
ing, why  for  three  years  he  (President  Adams)  has 
"  held  to  his  bosom,  as  a  political  counsellor,  Daniel 
"  Webster,  a  man  whom  he  called  in  his  midnight 
"  denunciation,  a  traitor  in  1808 ; "  also  why  President 
Adams  has  "always  met  in  friendly  and  intimate  and 
"  social  terms  all  the  gentlemen,  whose  names  a  few 
"  years  before,  he  placed  upon  a  secret  record  in  the 
"archives  of  our  Government  as  traitors  to  their 
"  Country." 

*  William  Prescott  was  born  in  Pepperell,  August  19,  1762,  was  graduated 
from  Harvard,  1783,  was  a  member  of  the  House,  1798,  -99,  -1800,  -1  and 
1802,  also  in  1811,  1821  and  1823.  He  was  a  member  of  the  State  Senate  in 
1804,  a  member  of  the  Governor's  Council  in  1809,  1812  and  1813,  a  mem- 
ber of  the  Hartford  Convention  in  1814,  a  judge  of  the  Court  of  Common 
Pleas  for  Suffolk  County  in  1818,  1819,  and  a  member  of  the  Constitutional 
Convention  in  1820.  In  1828  he  retired  from  practice,  when  he  was  said  by 
Mr.  Webster  to  have  been  "  unquestionably  the  most  eminent  man  at  the 
Bar  in  Massachusetts."  He  died  in  Boston,  December  8,  1844. 

t  John  Welles  was  born  in  Boston,  October  14,  1764,  was  graduated  from 
Harvard,  1782,  and  became  a  merchant  and  largely  interested  in  foreign 
trade.  He  was  a  member  of  the  House  in  1804,  -5,  -6,  -7  and  1808,  and 
in  1823  and  1830,  State  Senator  in  1809,  -10,  -11,  -12,  -13, 1817  and  1820- 
1821,  a  member  of  the  Governor's  Council  in  1815  and  1816,  and  a  member 
of  the  Constitutional  Convention  of  1820.  He  was  a  member  of  the  first 
Common  Council  of  Boston  in  1822  and  President  of  the  Council  in  1823. 
He  died  in  Boston,  September  25,  1855,  in  the  ninety-first  year  of  his  age. 


(  11  ) 

The  gist  of  Mr.  Webster's  charge  against  Mr.  Ly- 
man  was,  that  whereas  Mr.  Adams  had  only  charged 
that  leading  Federalists  of  Massachusetts  had  in  1808 
been  guilty  of  treasonable  designs  to  break  up  the 
Union,  naming  no  one  in  particular,  but  libelling  them 
all,  Mr.  Lyman  had  named  Daniel  Webster  as  a  per- 
son to  whom  the  libel  of  Mr.  Adams  applied,  and 
thus  made  Adams's  libel  of  all  the  leading  Federal- 
ists of  Massachusetts  Lyman's  own  libel  of  Daniel 
Webster. 

The  defence  of  Mr.  Lyman  was  in  the  first  place 
that  the  article  was  not  libellous,  because,  while  Mr. 
Adams  did  not  name  any  person  specifically,  he  did 
charge  all  the  leading  Federalists  with  treasonable  de- 
signs in  1808,  and  while  he  spoke  particularly  of  those 
of  Massachusetts,  he  really  referred  to  all  leadingFed- 
eralists  in  New  England,  of  whom,  as  Lyman  said, 
Daniel  Webster  was  then  one. 

In  the  second  place,  Mr.  Lyman  claimed  that  the 
article  was  not  directed  against  Mr.  Webster,  but  only 
against  Mr.  Adams ;  that  he  wrote  the  article  hastily, 
forgetting  that  in  1808  Webster  did  not  live  in  Mas- 
sachusetts, and  with  no  real  intention  of  charging  Mr. 
Webster  with  any  treasonable  plot,  and  that  if  he 
had  done  so  in  effect  it  was  a  mere  inadvertence  and 
mistake. 

Fully  to  understand  this  case  and  the  trial,  it  is 


(     12     ) 

necessary  to  consider  the  condition  of  affairs  in  1808, 
the  conduct  of  the  Federalists  at  that  time  and  until 
the  close  of  the  War  of  1812,  the  course  pursued  by 
Mr.  Webster  as  to  the  Embargo  Acts  in  1808,  and 
his  subsequent  course  in  opposition  to  the  war  with 
England. 

The  trial,  as  I  have  said,  was  an  echo  of  the  Na- 
poleonic wars,  of  the  victory  of  Nelson  at  Trafalgar, 
and  of  Napoleon  at  Austerlitz.  Nelson  destroyed  the 
French  and  Spanish  fleet  at  Trafalgar  on  October  21, 
1805,  and  on  December  1,  1805,  Napoleon  crushed 
the  armies  of  the  allies  at  Austerlitz.  He  then  con- 
ceived the  impossible  scheme  of  shutting  all  English 
ports  to  the  commerce  of  the  world,  and  on  November 
21, 1806,  issued  the  famous  Berlin  Decree,  which  pro- 
hibited all  trade  of  neutral  nations  with  England,  or 
with  any  of  her  Colonies.  The  principal  neutral  trade 
of  England  then  was  in  American  ships.  A  treaty  was 
pending  between  England  and  the  United  States,  and 
England  at  once  demanded  that  the  United  States 
should  resist  the  Berlin  Decree.  To  do  this  would 
have  been,  in  fact,  to  join  England  in  its  war  with 
France,  and  the  United  States  Government  declined 
to  comply  with  this  demand.  The  English  Govern- 
ment at  once  broke  off  the  treaty  negotiations,  and 
on  January  7, 1807,  issued  an  Order  in  Council  pro- 
hibiting all  neutral  trade  between  the  ports  of  France 


(      13      ) 

or  of  any  of  her  allies.  November  14, 1807,  a  second 
English  Order  in  Council  was  made,  prohibiting  all 
commerce  between  a  country  at  peace  and  a  country 
at  war  with  England,  except  through  some  English 
port,  under  an  English  licence,  and  on  payment  of  a 
duty  to  England.  Napoleon  met  this  on  December 
15,  1807,  by  issuing  another  decree,  known  as  the 
Milan  Decree.  This  decree  declared  that  any  ship 
that  permitted  an  English  officer  to  search  it,  made 
a  voyage  to  England,  or  paid  a  tax  to  England,  was 
lawful  prize  of  war,  and  that  any  ship  that  went  to 
or  came  from  any  port  on  its  way  to  and  from  any 
port  in  the  British  possessions,  or  entered  or  left  any 
place  occupied  by  British  troops,  should  be  seized  as 
prize  of  war  wherever  it  might  be  found. 

The  United  States  was  then,  practically,  only  a  sea- 
board nation,  with  infant  manufacturing  industries, 
which,  under  the  protective  tariff  acts  of  the  different 
States  before  1787*  (when  Congress  was  first  given 
power  to  impose  a  tariff  upon  foreign  commerce)  and 
the  national  protective  tariff  acts  of  1789,  had  slowly 
struggled  into  existence ;  and  its  commerce  by  sea  was 

*See  "An  Act  for  laying  additional  duties  on  certain  enumerated  articles 
for  encouraging  the  manufactory  thereof  within  this  State."  Rhode  Island 
Laws,  1785,  General  Session,  p.  181. 

An  Act  to  encourage  and  protect  manufactures  of  this  State  by  laying 
additional  duties  on  certain  manufactures  which  interfere  with  them. 
Pennsylvania  Laws,  1785,  pp.  6,  69. 

See  also  Report  of  the  Committee  for  Encouragement  of  Manufactures. 
Massachusetts  Laws,  1786,  p.  411. 


(     14     ) 

of  the  utmost  importance  to  its  prosperity,  especially 
in  New  England.  This  commerce  was  by  these  De- 
crees and  Orders  in  Council  ground  between  the  up- 
per and  nether  millstones  of  England  and  France. 

To  meet  this  situation  President  Jefferson  con- 
ceived a  scheme,  which  proved  even  more  hurtful  to 
American  commerce  than  the  Napoleonic  Decrees 
and  the  English  Orders.  It  was  nothing  less  than  to 
prohibit  all  foreign  commerce,  and  to  make  foreign 
trade  by  the  United  States  a  crime.  He  acted  with 
unseemly  haste,  sending  a  special  message  of  less  than 
ten  printed  lines*  to  Congress,  recommending  an 
Embargo  Act,  December  18,  1807. 

Gallatin,  by  far  the  ablest  member  of  the  Cabinet, 
remonstrated  in  writing,  but  Jefferson  would  heed 
nothing.  He  was  then  the  supreme  power  in  the 
Government.  Whatever  he  commanded,  Congress 
hastened  to  do.  When  his  message  was  received  in  the 
Senate  all  other  business  was  at  once  suspended.  The 
message  was  referred  to  a  committee  of  five,  of  whom 
John  Quincy  Adams  was  one,  and  in  a  few  minutes 
the  Committee  reported  an  Embargo  Act.  Adams 
said, "  I  would  not  deliberate.  I  would  act"  And  they 
did  not  deliberate.  The  rules  were  at  once  suspended, 
and  in  four  hours  from  the  reception  of  the  message, 
a  bill  laying  an  unlimited  embargo  on  all  the  ships 

*  Messages  of  the  Presidents,  vol.  i,  p.  433. 


(     15     ) 

of  the  United  States  passed  the  Senate  and  was  sent 
to  the  House  of  Representatives.  There  all  amend- 
ments limiting  the  duration  or  effect  of  the  Act  were 
rejected,  and  three  days  later,  on  December  22, 1807, 
the  bill  was  signed  by  the  President,*  and  an  un- 
limited prohibition  placed  upon  all  the  foreign  com- 
merce of  the  United  States. 

No  more  foolish  or  injurious  legislation  was  ever 
enacted  by  Congress.  The  effect  upon  commerce  and 
business  was  immediate  and  disastrous,  especially  in 
New  England,  where  six  towns  are  said  to  have  had 
more  than  one  third  of  the  total  tonnage  of  the  United 
States.  The  Embargo  Act  at  once  made  this  property 
nearly  valueless.  Sailors  and  all  persons  employed  in 
shipping  were  thrown  out  of  employment ;  products 
for  exportation  fell  more  than  one  half  in  value ;  far- 
mers soon  had  no  market  for  their  products  and  no 
means  of  paying  their  debts.  Of  course,  the  law  was 
evaded  in  many  ways,  and  January  9, 1808,  a  further 
Act  was  passed,  which  put  the  coasting  trade  and  the 
New  England  fisheries  under  onerous  and  almost  pro- 
hibitory conditions.!  This  Act  was  also  evaded,  and 
March  12,  1808,  another  Act  was  passed,  affecting 
foreign  trade  not  only  by  sea,  but  by  land.t  This  was 
also  evaded,  particularly  along  the  Canadian  border, 

*  United  States  Statutes  at  Large  (1845),  vol.  ii,  p.  451. 
t  United  States  Statutes  at  Large  (1845),  vol.  ii,  p.  453. 
£  United  States  Statutes  at  Large  (1845),  vol.  ii,  p.  473. 


(      16     ) 

and  April  19, 1808,  Jefferson  issued  a  proclamation 
declaring  the  country  adjacent  to  Lake  Champlain  to 
be  the  seat  of  a  combination  against  the  laws  of  the 
United  States,  and  calling  the  people  "insurgents."* 
April  25, 1808,  another  Act  was  passed  still  more 
stringent  than  the  previous  Acts,  t  Under  this  Act  no 
ship  could  sail  unless  loaded  in  the  presence  of  a  reve- 
nue officer,  nor  without  special  permission  from  the 
President,  and  no  boat,  however  small,  (ferry-boats 
alone  excepted,)  could  navigate  any  bay  or  river, 
sound  or  lake,  without  a  clearance  from  the  collector 
of  some  port.  The  effect  was  that  a  farmer  could  not 
even  take  his  own  wheat  to  market  in  his  own  boat  and 
bring  back  the  flour  for  his  own  use  without  a  clear- 
ance and  a  bond  to  the  collector.  The  transportation 
of  provisions  from  port  to  port  on  the  coast  was  prac- 
tically prohibited.  The  whole  New  England  coast  was 
patrolled  by  armed  vessels,  the  importation  of  flour 
into  Boston  was  stopped,  and  preparations  were  made 
to  put  down  any  insurrection  there  by  force.  When 
the  people  of  Nantucket  asked  for  leave  to  bring  in 
food,  the  President  refused  it,  saying  they  must  have 
smuggled  away  what  they  ought  to  have  kept.  He 
practically  made  himself  commissary  to  the  people, 
and  decided  what  and  how  much  they  should  eat.  He 

*  Messages  of  the  Presidents,  vol.  i,  p.  450. 

t  United  States  Statutes  at  Large  (1845),  vol.  ii,  p.  499. 


(     17     ) 

even  declared  that  the  character  of  a  place  must  be 
considered,  and  if  it  were  found  to  be  tainted  with  the 
general  spirit  of  disobedience,  the  individual  who  de- 
sired leave  to  transport  merchandise  must  give  posi- 
tive proof  that  he  had  never  said  or  done  anything 
himself  to  countenance  that  spirit. 

We  can  hardly  realize  now  the  pressure  of  these 
laws  upon  the  people.  Thousands  failed,  and  the  jails 
could  hardly  contain  the  poor  debtors.  In  1809,  more 
than  twelve  hundred  persons,  ruined  by  the  Embargo, 
are  said  to  have  been  imprisoned  as  poor  debtors  in 
the  city  of  New  York  alone.  Places  of  business  were 
closed,  ships  dismantled,  and  grass  grew  upon  the 
wharves  which  before  had  been  busy  with  profitable 
commerce.  More  than  a  hundred  thousand  men  were 
thrown  into  idleness,  and  poverty  and  crime  rapidly 
increased.  The  expenses  of  the  Government  increased, 
and  its  revenue  from  commerce  fell  in  a  single  year 
from  sixteen  million  dollars  to  only  a  few  thousand 
dollars.  State  laws  to  stay  the  collection  of  debts  were 
passed  in  direct  violation  of  the  national  Constitution. 
The  prosperity  of  the  people  was  changed  to  ruin, 
their  happiness  to  misery,  and  their  hope  to  despair. 

The  result  was  not  only  evasion  of  the  law,  but 
forcible  resistance  at  many  points  in  New  England. 
The  people  assembled,  protected  those  whom  the 
officers  attempted  to  arrest,  and  drove  off  the  officers 


(     18     ) 

themselves.  Juries  refused  to  convict  persons  pros- 
ecuted under  the  Embargo  Laws.  Still  Jefferson  did 
not  yield  to  the  distress  and  resistance  of  the  people, 
and  at  his  command,  January  9, 1809,  Congress  passed 
what  was  known  as  the  "  Force  Act,"  *  with  heavy  pen- 
alties, one  half  to  the  informer.  This  made  it  a  crime 
to  carry  or  attempt  to  carry  merchandise  out  of  the 
United  States  in  any  way  whatever,  and  made  it  un- 
lawful to  load  any  water-craft  without  leave  of  a 
United  States  collector,  and  under  the  direction  of  a 
United  States  inspector,  and  without  giving  a  bond 
of  six  times  the  value  of  ship  and  cargo  not  to  sail 
without  permission.  It  also  fixed  the  bond  for  leave  to 
conduct  commerce  on  any  of  the  rivers,  lakes,  sounds 
and  harbors  at  three  hundred  dollars  a  ton,  and  pro- 
vided that  all  collectors  who  should  find  any  goods 
of  home  manufacture  or  growth  on  any  water-craft, 
or  should  find  them  in  a  wagon  or  vehicle  going  to- 
ward the  seaboard  or  the  boundary  line  of  another 
country,  should  seize  and  hold  them  until  bonds  were 
given  not  to  take  them  out  of  the  United  States. 
And  finally  the  President  was  authorized  to  use  so 
much  of  the  army  as  he  saw  fit  for  enforcing  the  Act 
on  the  land,  and  to  hire,  arm  and  equip  vessels  to 
enforce  it  on  the  water. 

A  full  and  fair  analysis  of  this  Act  and  a  state- 
united  States  Statutes  at  Large  (1845),  vol.  ii,  p.  506. 


(     19     ) 

ment  of  its  effect  in  Massachusetts  will  be  found  in 
the  report  of  the  joint  committee  of  the  Legislature 
made  February  1,  1809,  upon  the  petitions  of  towns 
including  "an  immense  majority  of  the  people  of  the 
Commonwealth"  asking  for  relief  from  its  effect,  and 
in  the  "Address  of  the  Legislature  to  the  People  of 
the  Commonwealth  of  Massachusetts,"  issued  at  the 
same  session.  More  than  one  hundred  and  thirty  of 
these  petitions  are  still  preserved  in  the  Archives  of 
the  Commonwealth  and  show  how  harshly  this  op- 
pressive law  was  enforced  by  the  President. 

As  to  its  effect  the  committee  say: 
"  The  merchant  on  the  sea  coast  has  abandoned  his 
"  enterprizes,  and  the  trader  in  the  country  has  lost 
"  his  customers,  his  debts  and  his  credits.  The  ship 
"  owner  beholds  the  silent  and  certain  ruin  of  pro- 
"  perty,  sufficient  to  carry  on  the  principal  trade  of 
"  the  world.  The  work  shop  of  the  mechanick  is  de- 
"  serted,  and  the  ship  builder  is  without  employment. 
"  The  produce  of  the  farmer  has  fallen  in  value ;  while 
"  all  the  articles  for  which  he  depends  on  foreign  na- 
"  tions,  have  risen  to  a  price  which  places  them  be- 
"  yond  his  reach ;  and  this  misfortune  will  now  be 
"  aggravated  by  an  unprecedented  addition  of  duties. 
"  The  creditor  from  necessity  presses  on  his  debtor, 
"  and  the  debtor  beholds  his  property  sacrificed  at 
"half  its  value." 


(      20     ) 

This  address  plainly  threatened  disunion  and  forci- 
ble resistance  to  the  Embargo  Acts  if  they  were  not 
repealed.* 

No  such  arbitrary  and  oppressive  act  as  the  Force 
Act  had  been  passed  by  Congress  since  the  Alien 
and  Sedition  Acts  of  1798,  which  wrecked  the  ad- 
ministration of  John  Adams;  and  the  people  rose 
against  it,  especially  in  New  England,  almost  as  one 
man.  The  voters  assembled  in  town  meetings,  began 
to  correspond  with  each  other,  and  to  provide  for  the 
appointment  of  committees  of  safety,  and  for  con- 
ventions to  consider  whether  it  was  not  necessary  to 
break  up  the  Union  to  be  relieved.  The  Legislature 
of  Massachusetts  at  once  passed  a  bill  providing  that 
any  person  making  the  searches  provided  for  in  the 
Force  Act  should  upon  conviction  be  punished  with 
fine  and  imprisonment,  but  the  Governor  vetoed  the 
bill.f  They  then  passed  resolutions  declaring  the 
Force  Act  to  be  "unjust,  oppressive  and  unconsti- 
tutional," and  declaring  that  Massachusetts  was  ready 
to  cooperate  with  other  States  in  legal  measures  for 
procuring  such  amendments  to  the  Constitution  as 
were  "necessary  to  afford  permanent  security  as  well 
as  present  relief." 

*  "  The  Patriotic  Proceedings  of  the  Legislature  of  Massachusetts  During 
their  Session  from  January  26  to  March  4,  1809."  Printed  by  Joshua  Gush- 
ing, 79  State  Street,  Boston,  1809,  pp.  40,  114,  129. 
t  A  copy  of  this  bill  from  the  State  Archives  is  an  Appendix  hereto. 


(     21     ) 

In  Connecticut  Governor  Trumbull  refused  to 
appoint  officers  of  the  militia  on  whom  the  United 
States  collectors  could  call  for  help,  saying  there  was 
no  authority  for  such  appointments.  He  then  called 
the  Legislature  together  and  declared  to  them  that 
Congress  had  violated  the  Constitution,  and  that  it 
was  the  duty  of  the  States  to  protect  the  people  from 
its  action. 

In  Rhode  Island  the  Custom-House  authorities 
having  called  on  the  Governor  for  aid  to  enforce  the 
Act,  he  called  out  four  companies  of  militia,  but  they 
met  only  to  declare  they  would  not  serve. 

Popular  indignation  was  most  intense.  The  Em- 
bargo was  called  the  "Dambargo,"  or,  reversing  its 
letters,  the  "O-grab-me,"  and  the  permits  under  it 
were  called  "Presidential  Bulls  and  Indulgences." 
The  press  denounced  it.  Pamphlets  were  published 
and  countless  broadsides,  caricatures  and  squibs  were 
issued  against  it. 

Disunion  was  openly  and  widely  advocated  and 
the  pulpit  gave  expression  to  the  feelings  of  the 
people  by  sermons  from  the  text,  "Wherefore  come 
out  from  among  them,  and  be  ye  separate,  saith  the 
Lord." 

The  Senators  and  Representatives  from  the  New 
England  States  declared  in  Congress  that  the  peo- 
ple were  not  bound  to  submit  and  would  not  sub- 


(     22     ) 

mit  to  the  Embargo  Act.  Timothy  Pickering,*  then 
in  the  Senate,  said  that  the  Revolution  began  in  New 
England,  "and  one  of  the  reasons  assigned  for  the 
Declaration  of  Independence  was  the  cutting  off  our 
trade  with  all  the  world." 

Joseph  Story,  f  then  a  member  of  Congress,  after- 
wards Justice  of  the  United  States  Supreme  Court, 
said  that  if  the  embargo  continued  there  was  great 
probability  of  attempting  to  separate  the  Eastern 
States  from  the  Union.  All  the  New  England  states- 
men were  apparently  of  one  mind  with  regard  to  the 
effect  of  the  Embargo  and  Force  Acts,  and  the  peo- 
ple were  with  them,  so  that  it  did  come  to  pass,  as 
Jefferson  afterwards  said,  that  "the  alternative  was 
the  repeal  of  the  Embargo  Acts,  or  Civil  War." 

Finally  Jefferson  yielded  to  the  storm,  and  on 
March  1,  1809,  a  bill  repealing  the  Embargo  Acts 

*  Timothy  Pickering  was  born  in  Salem,  July  17,  1745,  and  was  graduated 
from  Harvard,  1763.  He  was  Colonel  in  the  Continental  Army,  1775;  Chief 
Justice,  Essex  County  Court  of  Common  Pleas,  1775;  Judge  of  Maritime 
Court,  Middle  District,  Massachusetts,  1776,  1777 ;  appointed  by  Washing- 
ton Adjutant-General,  1777;  member  of  Board  of  War,  1777,  1778,  1779; 
Quartermaster-General,  1780;  drew  the  Answer  to  Washington's  Fare- 
well Address  to  the  Army,  1783;  member  of  Pennsylvania  Convention  to 
ratify  the  United  States  Constitution,  1787 ;  member  of  Convention  to  adopt 
new  Constitution  in  Pennsylvania,  1789 ;  Postmaster-General,  1791 ;  Sec- 
retary of  War,  1795;  Secretary  of  State,  1796-1800;  United  States  Senator 
from  Massachusetts,  1803  to  1811;  member  of  Congress,  1812-1816 ;  member 
of  Governor's  Council,  1817,  and  died  in  Salem,  January  29,  1829. 
t  Joseph  Story  was  born  in  Marblehead,  September  18, 1779,  was  graduated 
from  Harvard,  1798,  was  a  member  of  the  House  1805,  -6,  -7,  1810  and 
1811.  He  was  Speaker  in  1811,  and  resigned  upon  his  appointment  as 
Associate  Justice  of  the  United  States  Supreme  Court,  an  office  which  he 
held  until  1845.  He  was  a  member  of  the  State  Constitutional  Conven- 
tion in  1820,  and  died  in  Cambridge,  September  10,  1845. 


(     23     ) 

from  and  after  the  end  of  the  next  session  of  Con- 
gress, and  providing  for  non-intercourse  with  France 
and  England  and  their  colonies,  was  passed  by  Con- 
gress and  signed  by  him.*  Three  days  later  he  ceased 
to  be  President,  and  retired  to  Monticello,  whence  he 
constantly  meddled  with  public  affairs  without  offi- 
cial responsibility,  but  fortunately  with  constantly 
decreasing  influence. 

But  the  repeal  of  the  Embargo  Acts  did  not  re- 
lieve the  people  of  the  United  States  from  the  un- 
just and  arbitrary  conduct  of  England.  She  did  not 
revoke  her  Orders  in  Council ;  she  still  continued  to 
search  our  ships,  blockade  our  ports,  and  impress  our 
seamen,  t  until  at  last  an  indignant  people  forced  the 
unwilling  hand  of  President  Madison,  and  June  18, 
1812,  Congress  declared  war  with  England,  and  we 
entered  upon  our  second  contest  for  independence. 

This  war  necessarily  caused  extreme  hardship  to 
the  New  England  States,  and  the  Federalists  there 
under  the  leadership  of  Timothy  Pickering,  who  had 
failed  of  a  reelection  to  the  Senate  in  1811,  opposed 
its  prosecution  in  every  possible  way.}  The  plan  of 
a  Northern  Confederacy,  proposed  by  Pickering, 

•United  States  Statutes  at  Large  (1845),  vol.  ii,  p.  533. 
t  See  Message  of  President  Madison,  June  1,  1812.  Messages  of  the  Presi- 
dents, vol.  i,  p.  499. 

t  See ' '  Familiar  Letters  on  Public  Characters, "  p.  275,  for  account  of  meet- 
ing in  Faneuil  Hall,  July  15,  1814,  against  the  war,  at  which  Josiah  Quincy 
and  Harrison  Gray  Otis  were  the  principal  speakers. 


(     24     ) 

Plumer,  Griswold,  and  Burr  in  1804,  and  threatened 
in  1808  and  1809,  was  revived.  This  resulted  in  the  fa- 
mous Hartford  Convention,  held  upon  invitation  of 
the  Legislature  of  Massachusetts,  which  on  October 
18,  1814,  "appointed  twelve  delegates  to  meet  and 
"  confer  with  delegates  from  the  other  States  of  New 
"  England,  or  any  of  them,  upon  the  subjects  of  their 
"  public  grievances  and  concerns,"  etc.  Upon  this  in- 
vitation Connecticut  appointed  seven  delegates,  and 
Rhode  Island  four.  These  twenty-three  met  at  Hart- 
ford, Connecticut,  December  15, 1814,  and  admitted 
to  the  Convention  two  delegates  chosen  from  local 
conventions  in  New  Hampshire,  and  one  from  a  local 
convention  in  Vermont.  They  were  all  of  high  per- 
sonal character,  some  of  them  the  most  eminent  men 
in  their  States. 

George  Cabot*  of  Massachusetts  was  chosen  Presi- 
dent, and  Theodore  Dwight  of  Connecticut  Secretary. 
The  Convention  voted  that  its  proceedings  should  be 
absolutely  secret,  and  it  continued  in  secret  session 
until  January  5, 1815,  when  it  adjourned  to  meet  at 
the  call  of  the  Chairman  and  one  of  two  other  dele- 
gates named. 

*George  Cabot  was  born  in  Salem,  December  16,  1751.  He  was  a  member 
of  the  Convention  of  1779-1780,  which  framed  the  State  Constitution,  and 
of  the  Convention  which  ratified  the  United  States  Constitution  in  1788. 
He  was  a  State  Senator  in  1782,  a  member  of  the  House  in  1805,  of  the 
Governor's  Council  in  1808,  and  was  President  of  the  Hartford  Conven- 
tion in  1814.  He  died  in  Boston,  April  18,  1823. 


(     25     ) 

While  the  Convention  claimed  to  be  acting  within 
the  provisions  of  the  Federal  Constitution,  they  prac- 
tically adopted  the  doctrine  thatthe  States  had  aright 
to  nullify  the  laws  of  Congress,  and  advised  separate 
action  by  the  States  in  important  matters  confided 
by  the  Constitution  to  the  General  Government. 
They  prepared  a  long  report  recommending  numer- 
ous amendments  to  the  Constitution,  among  others 
amendments  providing  against  the  election  of  anyper- 
son  as  President  for  more  than  one  term,  and  against 
the  election  of  a  President  from  the  same  State  for  two 
successive  terms,*  prohibiting  Congress  from  declar- 
ing war  except  by  a  two-thirds  vote  of  both  Senate  and 
House,  and  prohibiting  any  naturalized  citizen  from 
holding  any  civil  office  under  the  United  States,  t 

This  report  was  transmitted  to  the  Governor  of 
Massachusetts,  and  on  January  18,  1815,  by  him 
laid  before  the  Legislature,  which  on  January  27 
adopted  a  resolve  "highly  approving"  the  proceed- 
ings of  the  Convention,  and  authorizing  the  Gov- 
ernor and  Council  to  appoint  three  commissioners 
to  proceed  immediately  to  the  seat  of  the  National 
Government  and  make  an  application  for  some  ar- 
rangement whereby  "the  State  of  Massachusetts  sep- 

*  At  that  time  the  President  had  been  chosen  from  Virginia  for  twenty- 
four  out  of  the  twenty-eight  years  during  which  the  Federal  Government 
had  been  established. 
t  Massachusetts  Resolves,  1815,  pp.  580,  590,  596. 


(     26     ) 

"  arately  or  in  concert  with  neighbouring  States  may 
"  be  enabled  to  assume  the  defence  of  their  territories 
"  against  the  enemy,"  and  also  on  January  30  passed 
a  resolve  for  paying  the  members  of  the  Convention 
from  Massachusetts  for  their  attendance  and  travel. 
In  all  this  opposition  to  the  Embargo  Acts  and  to 
the  war  with  England,  Daniel  Webster  took  an  ac- 
tive and  leading  part.  In  1808,  he  was  practising  law 
in  Portsmouth,  New  Hampshire.  He  was  a  Federalist 
by  inheritance,  by  disposition  and  by  surroundings. 
He  was  a  faithful  disciple  of  Timothy  Pickering,  who 
instigated  the  Hartford  Convention  and  practically 
guided  its  action.  As  soon  as  Webster  was  elected  to 
Congress,  and  before  he  took  his  seat,  in  1813,  he 
wrote  Mr.  Pickering  assuring  him  of  his  respect  and 
placing  himself  under  Pickering's  political  guidance.* 
He  was  absolutely  opposed  to  the  policy  and  purposes 
of  Jefferson  and  of  Madison,  and  to  the  War  of  1812. 
In  a  speech  before  the  "Federal  gentlemen"  of  Con- 
cord, New  Hampshire,  in  1806,  he  attacked  the  ad- 
ministration of  Jefferson  with  great  ability  and  force, 
and  in  1808  he  published  a  pamphlet  which  first 
brought  him  into  political  prominence,  entitled,  "Are 
the  Embargo  Laws  Constitutional ?"t  This  was  put 
in  evidence  in  the  Lyman  trial. 

*  Life  of  Timothy  Pickering,  vol.  iv,  p.  223. 

t  Writings  and  Speeches  of  Daniel  Webster.  Little,  Brown  &  Co.  edition, 

1903,  vol.  xv,  p.  562. 


(     27     ) 

In  July,  1812,  he  made  a  speech  in  opposition  to 
the  war  with  England,  and  in  August  of  the  same 
year  he  wrote  what  was  known  as  the  "  Rockingham 
Memorial,"*  addressed  to  the  President,  in  oppo- 
sition to  the  war.  This  memorial  distinctly  spoke 
of  and  practically  threatened  secession  from  the 
Union  as  the  result  of  the  conduct  of  the  adminis- 
tration. 

His  first  act  upon  taking  his  seat  in  Congress  as 
a  member  from  New  Hampshire  was  to  harass  the 
Government  by  the  introduction  of  resolutions  call- 
ing for  information  as  to  the  repeal  of  the  French  de- 
crees, and  by  making  a  vigorous  speech  in  opposition 
to  the  war. 

December  9, 1814,  Webster  said  in  Congress  that 
Congress  had  no  power  to  raise  armies  by  calling  out 
the  militia  against  the  will  of  the  States ;  and  he 
added  in  words  which  had  but  one  meaning,  that  of 
State  resistance  to  the  National  Government: 
"  It  will  be  the  solemn  duty  of  the  State  Govern- 
"  ments  to  protect  their  own  authority  over  their  own 
"  militia  and  to  interpose  between  their  own  citizens 
"  and  arbitrary  power.  These  are  among  the  objects 
"  for  which  the  State  Governments  exist.  .  .  .  And  I 
"  shall  exhort  them  to  exercise  their  unquestionable 

*  Writings  and  Speeches  of  Daniel  Webster,  vol.  xv,  p.  598. 


(     28     ) 

"right  of  providing  for  the  security  of  their  own 
"  liberties."* 

No  word  here  of  the  power  of  the  Federal  Judi- 
ciary to  decide  this  question — only  an  open  and  un- 
qualified appeal  to  the  doctrine  of  States'  rights  and 
a  practical  declaration  of  the  right  of  the  States  to 
nullify  the  Acts  of  Congress.  No  wonder  that  such 
words  were  followed  within  one  month  by  the  decla- 
ration of  the  Hartford  Convention  that  "  In  case  of 
"  infractions  of  the  Constitution  affecting  the  sover- 
"  eignty  of  a  State  and  the  liberty  of  its  people,  it  is 
"  not  only  the  right  but  the  duty  of  such  a  State  to 
"  interpose  its  authority  for  their  protection  in  the 
"  manner  best  calculated  to  secure  that  end.  ...  In 
"  such  emergencies  States  which  have  no  common 
"umpire  must  be  their  own  judges  and  execute  their 
" own  decisions" 

Webster  voted  constantly  with  Pickering,  who  was 
then  in  the  House,  and  acted  at  all  times  with  the  ul- 
tra-Federalists, who  had,  as  Mr.  Adams  charged,  un- 
doubtedly proposed  in  1804,  and  again  in  1808  and 
in  1814,  to  break  up  the  Union  and  form  a  separate 
Confederacy  of  the  New  England  and  other  Eastern 
States,  t  Even  after  the  British  Army  had  entered 

*  The  Letters  of  Daniel  Webster,  p.  67.  C.  H.  Van  Tyne. 
tSee  Letters  of  Pickering  to  Theodore  Lyman,  February  11,  1804,  and 
November  14,  1804;  to  Stephen  Higginson,  December  24,  1803;  toRufus 
King,  March  4,  1804 ;  and  other  correspondence  on  the  subject  of  a  North- 


(     29     ) 

Washington  and  burned  the  White  House  and  the 
Capitol,  Mr.  Webster  voted  against  taxes  to  carry  on 
the  war,  and  also  spoke  and  voted  against  an  act  to 
enlist  soldiers  and  raise  men  by  draft  to  defend  the 
Country,  taking  the  ground  that  the  General  Gov- 
ernment under  its  powers  "  to  raise  armies  "  could 
only  obtain  troops  by  contracts  of  enlistment,  or  by 
calling  on  the  States  to  furnish  militia. 

He  also  spoke  and  voted  against  the  establishment 
of  a  United  States  Bank,  with  power  to  issue  notes 
in  such  a  way  as  to  aid  the  Government  in  carrying 
on  the  war.  In  short,  he  constantly  opposed  the  Gov- 
ernment, by  voice  and  vote,  in  the  war  against  Eng- 
land,— "  our  second  war  of  independence." 

A  man  is  known  by  the  company  he  keeps ;  and 
it  is  not  strange  that  Mr.  Lyman,  writing  in  1828, 
should  have  named  Webster  with  the  men  with 
whom  he  had  thus  constantly  acted. 

Mr.  Webster,  however,  with  whom  love  of  the 
Union  had  then  become  an  absorbing  passion,  and 
who  had  long  ceased  to  have  any  sympathy  with  the 
ultra-Federalists  with  whom  he  had  acted,  and  who 
had  contemplated  disunion,  was  naturally  highly  in- 
censed by  Mr.  Lyman's  article  in  the  Jackson  Re- 
publican. He  at  once  employed  Charles  P.  Curtis,* 

era  Confederacy,  printed  in  Henry  Cabot  Lodge's  Life  and  Letters  of 

George  Cabot. 

*  Charles  Pelham  Curtis  was  born  in  Boston,  June  25, 1792,  was  graduated 


(     30     ) 

then  the  City  Solicitor  of  Boston,  and  Richard 
Fletcher,*  one  of  the  most  eminent  members  of  the 
Bar,  to  ascertain  who  wrote  the  article,  and  upon 
application  to  the  publishers  of  the  paper,  they  were 
informed  on  November  1  that  the  article  was  written 
by  Theodore  Lyman,  Jr. 

Webster  and  Lyman  were  former  political  associ- 
ates, and  had  been  personal  friends  and  neighbors  from 
the  time  Mr.  Webster  came  to  Boston.  They  were  on 
intimate  social  terms,  met  usually  several  times  a 
week,  and  had  for  years  belonged  to  a  dinner  club 
that  met  every  Saturday.  It  would  have  been  a  very 
simple  matter  for  Mr.  Webster  to  have  asked  Mr. 
Lyman  for  an  explanation  as  to  whether  he  intended 
to  charge  him  with  having  been  engaged  in  a  plot  to 
break  up  the  Union  in  1808.  If  this  had  been  done, 
a  satisfactory  disclaimer  would  doubtless  have  been 
made,  as  subsequent  events  well  show. 

Boston  was  at  that  time  a  small  place.  It  had  no  gas 
in  its  streets,  no  railroads  or  street  railways,  and  no 
telegraph,  and  its  only  water  supply  was  a  line  of  log 
pipes  from  Jamaica  Pond.  The  Post- Office  had  but 
eight  clerks,  and  the  town  had  only  four  notaries, 

from  Harvard,  1811,  attained  distinction  at  the  Bar,  was  a  member  of  the 
Legislature  in  1838  and  in  1842,  and  died  in  Boston,  October  4,  1864. 
*  Richard  Fletcher  was  born  in  Cavendish,  Vermont,  January  8, 1788,  was 
graduated  from  Dartmouth,  1806,  studied  law  with  Daniel  Webster,  was 
member  of  Congress,  1837-1839,  and  an  Associate  Justice  of  the  Supreme 
Judicial  Court,  1848-1853.  He  died  in  Boston,  June  21,  1869. 


(     31      ) 

three  assessors,  and  one  savings  bank.  It  still  elected 
many  of  the  old  town  officers.  It  had  two  pound- 
keepers,  four  fence-viewers,  and  three  hog-reeves,  and 
its  directory  had  a  separate  list  of  "people  of  color." 
Its  residences  still  had  gardens  and  yards  with  shrubs 
and  trees.  Its  residential  and  business  quarters  were 
so  limited  that  all  persons  in  Mr.  Webster's  and  Mr. 
Lyman's  station  in  life  were  practically  near  neigh- 
bors, and  necessarily  met  frequently.  They  all  lived 
near  one  another.  Webster  first  lived  on  Mount  Ver- 
non  Street,  and  then  on  Somerset  Street,  not  far 
from  Mr.  Lyman,  who  lived  on  Bowdoin  Street,  and 
Judge  Orne,  who  lived  on  Hancock  Street.  Josiah 
Quincy,  the  Mayor,  lived  in  Hamilton  Place,  while 
his  son,  Josiah  Quincy,  Jr.,  lived  at  4  Park  Street, 
and  had  his  office  at  16  Court  Street.  Benjamin  Rus- 
sell, editor  of  the  Centinel,  lived  on  Pearl  Street,  and 
Isaac  Pray,  foreman  of  the  Grand  Jury,  who  found 
the  indictment  against  Lyman,  lived  on  Purchase 
Street.  Samuel  Hubbard  lived  in  Bumstead  Place, 
from  which  there  was  then  a  view  of  the  Brookline 
hills,  and  had  his  office  in  Barristers  Hall,  next  the 
Court  House  on  School  Street;  while  James  T.  Aus- 
tin lived  in  Fayette  Place,  or  Colonnade  Row,  on  the 
east  side  of  the  Common,  and  had  his  office  in  the 
Court  House ;  and  the  Solicitor-General,  Daniel  Da- 
vis, lived  on  Somerset  Street.  Harrison  Gray  Otis 


(     32     ) 

lived  at  20  Beacon  Street;  William  Prescott  lived 
in  Bedford  Street,  and  had  his  office  in  Court  Street ; 
while  John  Davis,*  United  States  District  Judge, 
lived  in  Federal  Street,  near  Mr.  Webster.  Warren 
Dutton  lived  in  Fayette  Place,  and  had  his  office  in 
Barristers  Hall.  Richard  Fletcher  lived  at  the  "Ex- 
change" in  Congress  Square,  and  had  his  office  at 
26  State  Street;  and  Franklin  Dexter,  then  a  repre- 
sentative in  the  General  Court,  lived  at  3  Chauncey 
Place,  near  Summer  Street.  John  Welles,  John 
Lowell, f  Jonathan  Callender,  Clerk  of  the  Supreme 
Court,  Charles  P.  Curtis,  Chief  Justice  Parker,  Is- 
rael Thorndike,  and  Daniel  Webster  all  lived  on 
Summer  Street;  and  doors  were  cut  between  the 

*  John  Davis  was  born  in  Plymouth,  January  25,  1761,  was  graduated  from 
Harvard  in  1781,  was  a  member  of  the  Conventions  of  1788  and  1820, 
was  a  member  of  the  House  in  1792,  -93,  -94,  and  a  State  Senator  in  1795. 
In  1801  President  Adams  appointed  him  District  Judge  of  Massachusetts, 
an  office  which  he  held  for  forty  years.  He  died  in  Boston,  January  14, 1847. 
He  decided  in  the  Embargo  cases  that  the  Embargo  Law  was  constitu- 
tional, and  when  Samuel  Dexter  persisted  in  arguing  the  question  of  con- 
stitutionality to  the  jury,  he  threatened  to  commit  him  for  contempt.  Mr. 
Dexter  then  asked  postponement  until  the  next  morning,  to  which  Judge 
Davis  assented.  In  the  morning  Mr.  Dexter  stated  to  the  Court  that  he 
had  arrived  at  a  clear  conviction  that  it  was  his  duty  to  argue  the  consti- 
tutionality of  the  Embargo  Law  to  the  jury,  and  should  do  so  regardless 
of  the  consequences  to  himself;  and  he  did  so  without  any  further  inter- 
ference by  the  Court. 

t  John  Lowell  was  a  son  of  John  Lowell  who  was  born  in  Newbury,  June 
17,  1743,  was  graduated  from  Harvard,  1760,  was  a  member  of  the  House, 
1780,  -81,  -82,  and  a  member  of  the  Convention  which  framed  the  State 
Constitution  in  1779-1780.  He  was  a  member  of  the  Continental  Congress, 
1782-1783,  and  a  State  Senator  in  1784-1785.  He  was  United  States  Dis- 
trict Judge,  1789-1801,  and  Chief  Justice  of  the  United  States  Circuit 
Court  for  Maine,  Massachusetts,  New  Hampshire  and  Rhode  Island,  1801- 
1802,  when  the  Court  was  abolished.  He  died  in  Roxbury,  May  6,  1802. 


(      33     ) 

houses  of  Webster  and  Thorndike,  so  that  they  were 
used  together  for  receptions  and  other  large  social 
gatherings.*  The  only  Catholic  church,  the  Church 
of  the  Holy  Cross,  was  in  Franklin  Street.  The  First 
Church  was  in  Chauncey  Place,  and  the  New  South 
Church  and  Trinity  Church  were  in  Summer  Street. 
The  Boston  Athenaeum  was  in  Pearl  Street,  and  the 
principal  theatre  was  in  Federal  Street. 

The  actors  in  this  matter  were  all  members  of  a 
small  social  circle,  and  on  excellent  social  terms ;  and 
if  only  personal  considerations  had  been  involved,  it 
is  impossible  to  believe  that  any  prosecution  would 
have  been  instituted  by  Mr.  Webster  against  Mr. 
Lyman. 

But  Webster  and  his  political  friends  were  bitter 
against  Lyman  because  he  had  left  them  and  was 
supporting  Andrew  Jackson  for  President,  whom 
they  regarded  as  the  representative  of  everything  that 
was  bad  and  dangerous  in  politics.  The  opportunity 
to  punish  Lyman,  put  him  in  the  criminal  dock,  and 
probably  to  convict  him  of  a  crime  was  too  tempt- 

*  Webster  came  to  Boston  from  Portsmouth,  New  Hampshire,  August  14, 
1816,  and  for  a  short  time  boarded  with  Mrs.  Delano.  He  then  rented  a 
house  of  Mr.  Mason  on  Mount  Vernon  Street,  where  he  lived  until  De- 
cember, 1819.  His  daughter  Julia  was  bom  and  his  daughter  Grace  died 
in  this  house.  He  then  moved  to  Somerset  Street,  where  he  lived  until 
1822,  when  he  took  lodgings  in  Pearl  Street,  living  a  part  of  the  time 
in  Dorchester,  which  was  then  a  country  suburb.  In  November,  1824,  he 
moved  into  the  Thorndike  house  at  the  corner  of  Summer  and  High  streets. 
This  spot  is  now  covered  by  a  large  mercantile  building  bearing  a  tablet, 
"The  Home  of  Daniel  Webster." 


(     34     ) 

ing  to  be  lost.  No  explanation  of  the  article  was  asked 
of  Mr.  Lyman,  and  naturally  none  could  be  given  by 
him  unasked.  Twelve  days  after  the  article  was  pub- 
lished, Mr.  Webster  through  his  counsel  presented 
the  article  as  a  criminal  libel  to  the  Grand  Jury  in  the 
Supreme  Judicial  Court,  and  they  at  once  returned 
an  indictment  against  Mr.  Lyman  for  criminal  libel 
against  Mr.  Webster  in  his  office  as  a  Senator  of  the 
United  States  from  Massachusetts. 

The  character  of  this  prosecution  was  itself  unjust 
to  Mr.  Lyman.  Mr.  Webster  could  have  brought  a 
civil  action  against  him  for  damages,  and  the  facts 
could  have  been  brought  out  in  that  as  well  as  in  a 
criminal  prosecution,  except  that,  as  the  law  then  was, 
neither  Webster  nor  Lyman,  being  parties,  could 
have  testified.  In  a  criminal  prosecution  Webster 
could  testify,  while  Lyman  could  not,  so  that  by  the 
form  of  the  prosecution  Webster  closed  Lyman's 
mouth,  while  he  himself  retained  the  right  to  testify, 
and  did  testify. 

The  fact  that  the  prosecution  was  instituted  in  the 
Supreme  Judicial  Court,  the  highest  Court  in  the 
Commonwealth,  instead  of  in  the  Municipal  Court, 
which  then  had  jury  trials  and  had  as  a  judge  the  best 
criminal  law  lawyer  in  the  Commonwealth,*  and 

*  Peter  Oxenbridge  Thacher,  Judge  of  "The  Municipal  Court  in  the  Town 
of  Boston  "  from  1823  to  1843.  This  Court  had  jurisdiction  of  all  criminal 
cases  not  capital. 


(     35     ) 

where  prosecutions  for  libel  were  usually  brought,  is 
also  significant  of  the  motive  of  the  prosecution.  A 
trial  in  the  Municipal  Court  would  not  be  so  effec- 
tive upon  the  public  mind  at  large  as  one  in  the  high- 
est Court,  and  therefore  the  usual  course  was  not 
taken. 

The  character  of  the  indictment  was  also  most  un- 
usual and,  I  believe,  unprecedented  in  Massachusetts. 
It  was  framed  upon  a  precedent  under  the  law  of 
scandalum  magnatum,  or  slander  of  great  men,  an 
offence  adopted  into  the  English  law  in  the  Star 
Chamber  prosecutions,  but  never  adopted  as  a  part  of 
the  common  law  of  the  United  States.  It  was  mani- 
festly calculated  by  its  harsh  and  unnecessarily  vitu- 
perative terms  to  put  the  utmost  indignity  upon  Mr. 
Lyman.  It  is  wholly  in  the  handwriting  of  Daniel 
Davis,*  the  Solicitor-General,  and  is  as  follows : 

"  COMMONWEALTH  OF  MASSACHUSETTS.  SUFFOLK,  ss. 

"  AT  the  Supreme  Judicial  Court,  begun  and  holden 
"  at  the  City  of  Boston,  within  the  said  County  of 


*  Daniel  Davis  was  born  in  Barnstable,  May  8,  1762.  He  was  appointed 
United  States  District  Attorney  by  Washington  in  1796,  was  a  member  of 
the  House  in  1789,  -90,  1792,  -93,  -94  and  1795,  State  Senator  in  1796, 
-97,  -98,  -99  and  1800,  a  member  of  the  Constitutional  Convention  of  1820, 
and  Solicitor-General  from  1807  to  1832,  when  the  office  was  abolished.  He 
died  in  Cambridge,  October  27,  1835. 

His  son,  Charles  H.  Davis,  became  a  Rear-Admiral  in  the  United  States 
Navy,  and  was  the  father  of  the  wife  of  Henry  Cabot  Lodge,  United  States 
Senator  from  Massachusetts.  His  daughter,  Louisa,  married  William  Minot, 
an  eminent  trust  lawyer  of  Boston. 


(     36     ) 

"  Suffolk,  and  for  the  Counties  of  Suffolk  and  Nan- 
"  tucket,  on  the  second  Tuesday  of  November,  in  the 
"  year  of  our  Lord  one  thousand  eight  hundred  and 
"  twenty-eight. 

"  The  Jurors  for  said  Commonwealth  of  Massachu- 
"  setts  upon  their  oath  present,  that  Theodore  Ly- 
"  man,  Jr.  of  Boston,  in  the  said  County  of  Suffolk, 
"  Esquire,  being  a  person  of  malicious  temper  and 
"  disposition,  and  regardless  of  the  integrity,  patriot- 
"  ism,  and  purity  of  character,  which  the  citizens  of 
"  this  Common  wealth,  and  of  the  United  States,  when 
"  elected  to,  and  intrusted  with  offices  of  honor,  trust 
"  and  responsibility,  in  the  administration  of  the  gov- 
"  ernments  of  this  Commonwealth,  and  of  the  United 
"  States,  ought  to  possess  and  sustain;  and  unlaw- 
"  fully,  maliciously  and  deliberately,  devising,  con- 
"  triving  and  intending  to  traduce,  vilify  and  bring 
"  into  contempt  and  detestation,  one  Daniel  Web- 
"  ster,  of  said  Boston,  Esquire,  who  was  on  the  day 
"  hereafter  mentioned,  and  still  is  one  of  the  Sena- 
"  tors  in  the  Congress  of  the  United  States  of  Amer- 
"  ica,  for  the  State  of  Massachusetts,  duly,  and  con- 
"  stitutionally,  elected  and  appointed  to  the  office, 
"  and  also,  maliciously  intending  to  insinuate,  and 
"  cause  it  to  be  believed,  that  the  said  Daniel  Web- 
"  ster,  and  divers  other  good  and  patriotic  citizens,  of 
"  this  Commonwealth,  had  been  engaged  in  an  atro- 


(     37     ) 

"  cious,  and  treasonable  plot  to  dissolve  the  Union 
"  of  the  said  United  States,  then,  and  still  constitut- 
"  ing  the  Government  of  the  said  United  States,  un- 
"  der  the  present  Constitution  thereof;  and  further, 
"  maliciously  intending  to  insinuate,  and  cause  it  to 
"  be  believed,  that  John  Quincy  Adams,  the  present 
"  President  of  the  United  States,  had  denounced  the 
"  said  Daniel  Webster,  as  a  traitor  to  his  Country;  on 
"  the  twenty-ninth  day  of  October,  now  last  past,  at 
"  Boston  aforesaid,  in  the  County  of  Suffolk  afore- 
"  said,  unlawfully,  maliciously  and  deliberately,  did 
"  compose,  print  and  publish,  and  did  cause  and  pro- 
"  cure,  to  be  composed,  printed  and  published,  in  a 
"  certain  newspaper  called  the  Jackson  Republican, 
"  of  and  concerning  him,  the  said  Daniel  Webster, 
"  an  unlawful,  malicious,  and  infamous  libel,  accord- 
"  ing  to  the  purport  and  effect,  and  in  substance,  as 
"follows,  that  is  to  say,  'We,  (meaning  the  said 
"  Theodore  Lyman,  Junior,)  publish  this  morning  a 
"  letter  of  December,  1825,  of  Mr.  Jefferson,  to  Mr. 
"  Giles,  and  Mr.  Adams's  ( meaning  John  Quincy 
"  Adams,  the  present  President  of  the  United  States,) 
"  own  statement,  published  last  week  in  the  National 
"  Intelligencer,  at  Washington,  concerning  disclo- 
"  sures  said  many  months  ago,  to  have  been  made 
"by  Mr.  Adams,  (meaning  the  said  John  Quincy 
"  Adams,)  to  Mr.  Jefferson,  (meaning  Thomas  Jef- 


197O09 


(     38     ) 

"  ferson,  late  of  the  State  of  Virginia,)  in  regard  to 
"  the  conduct  of  the  leader  of  the  Federal  party,  in 
"  New  England,  during  the  whole  course  of  the  com- 
"mercial  restrictive  system.  Mr.  Adams  (meaning 
"  the  said  John  Quincy  Adams)  confirms  in  his  state- 
"  ment,  in  a  positive  and  authentic  form  and  shape, 
"  the  very  important  fact,  that,  in  the  years  1807  and 
"  1808  he,  (meaning  the  said  John  Quincy  Adams,) 
"  did  make  such  disclosures.  The  reader  will  observe, 
"  that  Mr.  Adams,  (meaning  the  said  John  Quincy 
"  Adams,)  distinctly  asserts,  that  Harrison  Gray  Otis, 
"  Samuel  Dexter,  William  Prescott,  Daniel  Web- 
"  ster,  (meaning  the  aforesaid  Daniel  Webster,) 
"  Elijah  H.  Mills,  Israel  Thorndike,*  Josiah  Quincy, 
"  Benjamin  Russell,  John  Welles,  and  others  of  the 
"  Federal  party,  of  their  age,  and  standing,  were 

*  Captain  Israel  Thorndike  was  born  in  Beverly,  April  30, 1755,  was  appren- 
ticed as  a  cooper,  became  a  privateer  during  the  Revolution,  and  as  a  suc- 
cessful merchant  captain  and  owner  of  ships  attained  wealth  after  the  war. 
He  was  a  member  of  the  Massachusetts  Legislature  in  1788,  and  a  member 
of  the  Constitutional  Convention  of  1788,  which  ratified  the  Federal  Con- 
stitution. He  was  a  member  of  the  House  in  1802,  -3,  -4,  -5,  -6, 1808  and 
1815,  and  a  member  of  the  State  Senate  in  1807  and  1809,  -10,  -12,  -13  and 
1814.  He  was  a  Presidential  Elector  in  1812  and  in  1816,  and  a  member  of  the 
Constitutional  Convention  in  1820.  He  removed  to  Boston  from  Beverly 
about  1800,  and  by  judicious  investments  in  manufactures  and  real  estate 
became  the  richest  man  in  the  city.  He  was  active  in  business  and  politics 
until  his  death,  May  10,  1832,  when  he  left  an  estate  appraised  at  $1,133,- 
401.52,  the  largest  fortune  which  up  to  that  time  had  been  left  in  New 
England.  He  was  a  firm  friend  and  patron  of  Webster,  who  lived  next  door 
to  him  on  Summer  Street  for  many  years. 

His  son,  Israel  Thorndike,  Jr.,  built,  at  the  corner  of  Beacon  and  Joy 
streets,  one  of  the  finest  houses  in  the  city,  which  he  afterwards  sold  to 
Robert  G.  Shaw,  whose  son,  G.  Howland  Shaw,  married  the  youngest 
daughter  of  Theodore  Lyman.  This  house  was  afterwards  the  home  of  Fred- 
eric Tudor  and  its  site  is  now  occupied  by  the  Hotel  Tudor. 


(     39     ) 

"  engaged  in  a  plot  to  dissolve  the  Union,  (mean- 
"  ing  the  Government  of  the  said  United  States,)  and 
"  to  re-annex  New  England  to  Great  Britain ;  and 
"  that  he  (Mr.  Adams,)  (meaning  the  aforesaid  John 
"  Quincy  Adams)  possessed  unequivocal  evidence,  of 
"  that  most  solemn  design.  The  reader  will,  also,  ob- 
"  serve,  that  in  the  statement  just  published,  of  Mr. 
"  Adams,  (meaning  the  said  John  Quincy  Adams,) 
"there  is  no  intimation  whatever,  that  he,  (mean- 
"ing  the  said  John  Quincy  Adams,)  does  not  still 
"  believe,  what  he,  (meaning  the  said  John  Quincy 
"  Adams,)  revealed  to  Mr.  Jefferson,  (meaning  the 
"  aforesaid  Thomas  Jefferson,)  and  Mr.  Giles,  twenty 
"years  ago.  All  the  gentlemen  we  (meaning  the 
"said  Theodore  Lyman,  Junior,)  have  mentioned 
"  above,  are,  with  one  exception,  still  living  and,  with 
"  two  exceptions,  are  active  and  ardent  political  friends 
"  of  Mr.  Adams,  (meaning  the  said  John  Quincy 
"  Adams.)  We  (meaning  the  said  Theodore  Lyman, 
"  Junior,)  here  beg  to  ask,  why  Mr.  Adams's  (meaning 
"  the  said  John  Quincy  Adams,)  statement,  has  been 
"withheld  from  the  public  eye  more  than  a  year? 
"  why  it  has  been  published  only  one  fortnight  be- 
"  fore  the  election  for  President  all  over  the  coun- 
"  try?  why  for  three  years  he  (meaning  the  said  John 
"  Quincy  Adams,)  has  held  to  his  (meaning  the  said 
"  John  Quincy  Adams)  bosom,  as  a  political  counsel- 


(     40     ) 

"  lor,  Daniel  Webster,  (meaning  the  aforesaid  Daniel 
"  Webster,)  a  man  whom  he  (meaning  the  said  John 
"  Quincy  Adams,)  called  in  his  (meaning  the  said 
"John  Quincy  Adams,)  midnight  denunciation,  a 
"traitor  in  1808?  (meaning  the  said  John  Quincy 
"  Adams,  had  called  and  denounced  the  said  Daniel 
"  Webster,  as  a  traitor  to  the  government  of  the 
"  United  States,  in  the  year  1808?)  Why  in  1826,  he 
"  (meaning  the  said  John  Quincy  Adams,)  paid  a 
"  public  compliment  to  Josiah  Quincy,  in  Faneuil 
"  Hall,  when  he  (meaning  the  said  John  Quincy 
"Adams,)  who  called  a  traitor,  (meaning  traitor) 
"  the  same  year?  and  as  the  last  question,  why,  dur- 
"  ing  the  visits  he  (meaning  the  said  John  Quincy 
"  Adams,)  has  made  to  Boston,  he  (meaning  the  said 
"  John  Quincy  Adams,)  always  met  on  friendly  and 
"  intimate  and  social  terms  all  the  gentlemen,  (mean- 
"  ing  gentlemen,  and  the  said  Daniel  Webster  as  one 
"  of  them,)  whose  names  a  few  years  before,  he  (mean- 
"  ing  the  said  John  Quincy  Adams,)  placed  upon  a 
"  secret  record  in  the  archives  of  our  Government  as 
"  traitors  to  their  Country  ?  (meaning  that  the  said 
"  John  Quincy  Adams  had  placed  the  name  of  the 
"  said  Daniel  Webster,  with  others,  upon  a  secret 
"  record  in  the  archives  of  the  Government  of  the 
"  United  States,  as  a  traitor  to  his  Country,)  why  did 
"  he  (meaning  the  said  John  Quincy  Adams,)  eat 


(     41      ) 

"  their  salt,  break  their  bread,  and  drink  their  wine?' 
"  To  the  great  injury,  scandal,  and  disgrace  of  the 
"  said  Daniel  Webster,  and  against  the  peace  and 
"  dignity  of  the  Commonwealth  aforesaid. 
"  And  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
"  do  further  present  that  the  said  Theodore  Lyman, 
"  junior,  being  a  person  of  a  malicious  temper  and 
"  disposition,  and  regardless  of  the  integrity,  patri- 
"  otism,  and  purity  of  character,  which  the  citizens 
"  of  this  Commonwealth  and  of  the  United  States, 
"  when  elected  to,  and  entrusted  with  offices  of  honor, 
"trust,  and  responsibility  in  the  administration  of 
"  the  government  of  this  Commonwealth  and  of  the 
"United  States  ought  to  possess  and  sustain;  and 
"  unlawfully,  maliciously,  and  deliberately  devising, 
"  and  intending  to  traduce,  vilify,  and  to  bring  into 
"  contempt  and  detestation,  one  Daniel  Webster,  of 
"  said  Boston,  Esquire,  who  was,  on  the  day  herein- 
"  after  mentioned,  and  still  is,  one  of  the  Senators  in 
"  the  Congress  of  the  United  States  of  America,  for 
"  the  State  of  Massachusetts,  duly  and  constitution- 
"  ally  elected  and  appointed  to  that  office;  and  also 
"  maliciously  intending  to  insinuate  and  cause  it  to 
"be  believed,  that  the  said  Daniel  Webster,  and 
"  divers  other  good  and  patriotic  citizens  of  the  Com- 
"  mon wealth,  had  been  engaged  in  an  atrocious  and 
"  treasonable  plot  to  dissolve  the  union  of  the  United 


(     42     ) 

"  States,  then  and  still  constituting  the  Government 
"  of  the  United  States  under  the  present  Constitu- 
"  tion  thereof ;  and  further  intending  maliciously  to 
"insinuate  and  cause  it  to  be  believed  that  John 
"  Quincy  Adams,  the  present  President  of  the  United 
"  States,  had  denounced  the  said  Daniel  Webster  as 
"  a  traitor  to  his  Country ;  on  the  twenty-ninth  day 
"  of  October  now  last  passed,  at  Boston  aforesaid,  in 
"  the  County  of  Suffolk  aforesaid,  unlawfully,  mali- 
"  ciously,  and  deliberately  did  compose,  print,  and 
"  publish,  and  did  cause  and  procure  to  be  composed, 
"  printed,  and  published,  in  a  certain  newspaper  called 
"the  Jackson  Republican,  of  and  concerning  him 
"  the  said  Daniel  Webster,  an  unlawful,  malicious, 
"  and  infamous  libel,  according  to  the  purport  and 
"  effect,  and  in  substance  as  follows,  to  wit,  'We' 
"  (meaning  the  editors  and  publishers  of  the  said 
"newspaper,  called  the  Jackson  Republican)  'pub- 
"  lish  this  morning  a  letter  of  December,  1825,  of 
"  Mr.  Jefferson  to  Mr.  Giles,  and  Mr.  Adams's '  (mean- 
"  ing  John  Quincy  Adams,  the  present  President  of 
"the  United  States,)  'own  statement  published  last 
"  week  in  the  National  Intelligencer,  at  Washington, 
"  concerning  disclosures  said,  many  months  ago,  to 
"  have  been  made  by  Mr.  Adams'  (meaning  the  said 
"  John  Quincy  Adams) '  to  Mr.  Jefferson,'  (meaning 
"  Thomas  Jefferson,  late  of  the  State  of  Virginia,) 


(     43     ) 

"'in  regard  to  the  conduct  of  the  leaders  of  the 
"  Federal  party,  in  New  England,  during  the  whole 
"  course  of  the  commercial  restrictive  system.  Mr. 
"  Adams'  (meaning  the  said  John  Quincy  Adams) 
"  'confirms  in  his  statement, in  a  positive  and  authen- 
"  tic  form  and  shape,  the  very  important  fact  that, 
"in  the  years  1807  and  1808,  he'  (meaning  the  said 
"John  Quincy  Adams)  'did  make  such  disclosures. 
"  The  reader  will  observe,  that  Mr.  Adams'  (mean- 
"ing  the  said  John  Quincy  Adams)  'distinctly  as- 
"serts,  that  Harrison  Gray  Otis,  Samuel  Dexter, 
"  William  Prescott,  Daniel  Webster,'  (meaning  the 
"  aforesaid  Daniel  Webster)  'Elijah  H.  Mills,*  Israel 
"  Thorndike,  Josiah  Quincy,  Benjamin  Russell,  John 
"  Welles,  and  others  of  the  Federal  party,  of  their  age 
"  and  standing,  were  engaged  in  a  plot  to  dissolve 
"  the  Union,'  (meaning  the  Government  of  the  said 
"  United  States)  'and  to  re-annex  New  England  to 
"  Great  Britain;  and  that  he  Mr.  Adams'  (meaning 
"  the  said  John  Quincy  Adams)  'possessed  "  unequiv- 
"  ocal  evidence"  of  that  most  solemn  design.  The  reader 
"  will  also  observe,  that  in  the  statement  just  pub- 
lished of  Mr.  Adams,'  (meaning  the  said  John 

"Elijah  Hunt  Mills  was  born  in  Chesterfield,  December  1,  1778,  was 
graduated  from  Williams,  1797,  practised  law  at  Northampton,  was  one  of 
the  Hampshire  Convention  Committee  which  issued  an  address  against 
the  Embargo,  March  2, 1809,  was  a  member  of  the  House  in  1810,  -11,  -12, 
-13  and  1814,  a  member  of  Congress  in  1815,  -16,  -17  and  1818,  a  member 
of  the  House  in  1819,  -20  and  Speaker  in  1820,  and  was  United  States 
Senator,  1820-1827.  He  died  in  Northampton,  May  5,  1829. 


(     44     ) 

"  Quincy  Adams)  'there  is  no  intimation  whatever, 
"  that  he'  (meaning  the  said  John  Quincy  Adams) 
"  'does  not  still  believe  what  he'  (meaning  the  said 
"John  Quincy  Adams)  ' revealed  to  Mr.  Jefferson 
"  and  Mr.  Giles  twenty  years  ago.  All  the  gentlemen 
"  we '  (meaning  the  editors  and  publishers  of  the  said 
"  newspaper,  called  the  Jackson  Republican)  '  have 
"  mentioned  above,  are,  with  one  exception,  still  liv- 
"  ing,  and,  with  two  exceptions,  are  active  and  ardent 
"  political  friends  of  Mr.  Adams,'  (meaning  the  said 
"John  Quincy  Adams).  'We'  (meaning  the  said 
"  editors  and  publishers  of  the  said  newspaper,  called 
"  the  Jackson  Republican)  'here  beg  to  ask,  why  Mr. 
"  Adams's'  (meaning  the  said  John  Quincy  Adams) 
"  'statement  has  been  withheld  from  the  public  eye 
"  more  than  a  year?  why  it  has  been  published  only 
"  one  fortnight  before  the  election  for  President  all 
"  over  the  country  ?  why,  for  three  years,  he'  (mean- 
"  ing  the  said  John  Quincy  Adams)  'has  held  to  his 
"  bosom,  as  a  political  counsellor,  Daniel  Webster,' 
"  (meaning  the  aforesaid  Daniel  Webster),  'a  man 
"  whom  he  called  in  his  midnight  denunciation,  a 
"  traitor,  in  1808,'  (meaning  that  the  said  John  Quincy 
"  Adams  had  called  and  denounced  the  said  Daniel 
"  Webster  as  a  traitor  to  the  Government  in  the  year 
"  1808.)  'Why,  in  1826,  he'  (meaning  the  said  John 
"  Quincy  Adams)  'paid  a  public  compliment  to  Jo- 


(     45     ) 

"  siah  Quincy,  in  Faneuil  Hall,  when  he'  (meaning 
"  the  said  John  Quincy  Adams)  'who  called  a  traitor' 
"  (meaning  a  traitor),  'the  same  year?  And  as  the 
"last  question,  why,  during  the  visits  he'  (meaning 
"  the  said  John  Quincy  Adams)  'has  made  to  Boston, 
"he'  (meaning  the  said  John  Quincy  Adams)  'al- 
"  ways  met  on  friendly  and  intimate  and  social  terms 
"  all  the  gentlemen'  (meaning  the  said  Daniel  Web- 
"  ster  as  one  of  them)  'whose  names,  a  few  years  be- 
"fore,  he'  (meaning  the  said  John  Quincy  Adams) 
"  'placed  upon  a  secret  record  in  the  archives  of  our 
"  Government,  as  traitors  to  their  Country? '  (mean- 
"  ing  that  the  said  John  Quincy  Adams  had  placed 
"  the  name  of  the  said  Daniel  Webster,  with  others, 
"  upon  a  secret  record  in  the  archives  of  the  Govern- 
"  ment  of  the  United  States.)  'Why  did  he'  (mean- 
"  ing  the  said  John  Quincy  Adams)  'eat  their  salt, 
"break  their  bread,  and  drink  their  wine?' 
"  To  the  great  injury  and  disgrace  of  him,  the  said 
"  Daniel  Webster,  and  against  the  peace  and  dignity 
"  of  the  Commonwealth  aforesaid. 

"  DANL.  DAVIS,  Solicitor  General. 
"A  true  bill,  ISAAC  C.  PRAY,  Foreman. 


"  A  true  Copy,  attested,  JNO.  CALLENDER,  Clerk" 


(     46     ) 

On  November  17,  Mr.  Lyman  appeared  with 
his  counsel,  Samuel  Hubbard  and  Franklin  Dexter, 
and  was  arraigned.  The  Clerk  said,  "Theodore  Ly- 
man junior,  hearken  to  an  indictment  found  against 
you  by  the  Grand  Inquest  for  the  body  of  this 
County."  The  indictment  was  then  read  to  him  by 
the  Clerk. 

The  Clerk  then  said,  "  What  say  you,  are  you 
guilty,  or  not  guilty?"  to  which  Mr.  Lyman  said, 
"Not  guilty." 

The  quaint  record  by  the  Clerk  on  the  back  of 
the  indictment  is 


"  SUFFOLK,  ss.  Nov.  17,  1828 

"  Arraigned  fy  has  this  indictment 
"  read  to  him  $•  being-  asked  thereof 
"  he  saith  thereof  he  is  not  guilty 

"JNO.  CALLENDER 

"Clerk." 


Mr.  Lyman  then  recognized  for  his  appearance  for 
trial.  The  record  on  the  indictment  is: 

"Deft,  recognizes  for  his  appearance  from  day  to  day  during 
the  session  of  this  Court  in  the  sum  of  $1000.  himself  alone.'''' 

Lyman's  counsel  then  moved  for  a  continuance  to 
the  March  term,  1829,  and  in  support  of  the  motion 
filed  the  following  affidavit  drawn  by  Mr.  Dexter: 


(     47     ) 

"SUFFOLK,  ss.    SUPREME  JUDICIAL  COURT, 
"  NOVEMBER  TERM,  1828. 

"COMMONWEALTH  vs.  THEODORE  LYMAN,  JR. 
..  rr^ 

1  HE  said  Theodore  Lyman,  Jr.,  makes  oath  and 

"says  that  this  indictment  was  found  against  him 
"  at  the  present  term  of  this  Court,  and  that  he  has 
"  had  only  five  days  notice  thereof,  and  was  not  able 
"  to  procure  a  copy  thereof  until  three  days  ago.  That 
"immediately  on  obtaining  such  copy,  he  advised 
"  with  his  Counsel  respecting  the  answer  he  should 
"  make  to  the  same.  That  his  said  Counsel  have  had 
"  the  same  matter  under  consideration,  and  now  ad- 
"  vise  him  that  the  several  matters  therein  charged 
"  to  have  been  published  by  said  Lyman  are  not  li- 
"  bellous  if  the  same  were  neither  wilfully  false  nor 
"  maliciously  contrived  and  intended  to  defame  the 
"  said  Daniel  Webster,  both  of  which  the  said  Ly- 
"  man  wholly  denies.  The  said  Lyman  is  further  ad- 
"  vised  that  he  may  lawfully  give  in  evidence  on  the 
"  trial  of  said  indictment,  the  truth  of  the  several 
"  matters  contained  and  alleged  in  said  supposed 
"  libel,  as  a  justification  thereof,  and  that  he  cannot 
"  safely  proceed  to  trial  on  this  point  of  his  defence 
"  without  evidence  of  a  great  variety  of  facts  relat- 
"  ing  to  the  political  history  of  the  United  States  for 
"  more  than  twenty  years  last  past,  and  to  the  part 
"  taken  therein  by  the  said  Daniel  Webster,  and  the 


(     48     ) 

"  other  persons  named  in  the  said  supposed  libel. 
"  That  it  will  be  necessary  for  him  to  prove,  among 
"  other  things,  that  John  Quincy  Adams,  the  Presi- 
"  dent  of  the  United  States,  composed  and  published, 
"or  caused  to  be  composed  and  published,  in  the 
"newspaper  caUed  the  National  Intelligencer,  the 
"  statement  said  in  that  paper  to  be  authorized  by 
"  him  and  referred  to  in  said  supposed  libel,  and  that 
"the  said  Thomas  Jefferson  did  write  to  the  said 
"  William  B.  Giles  the  letter  also  referred  to  in  said 
"supposed  libel;  and  that  the  said  Daniel  Webster 
"  was  one  of  the  description  of  persons  referred  to 
"  by  said  Adams  as  engaged  in  a  course  of  opposi- 
tion to  the  General  Government,  which,  in  the 
"  opinion  of  said  Adams,  tended  to  produce  a  forci- 
"  ble  resistance  against  said  Government  and  a  civil 
"  war,  in  which  the  persons  so  spoken  of  by  him  would 
"  surely  call  in  the  aid  of  Great  Britain  against  the 
"  Government  of  the  United  States;  and  also  as  per- 
"  sons  whose  object  was  to  dissolve  the  Union  of  the 
"  United  States  and  establish  a  separate  confederacy, 
"  by  the  aid  of  Great  Britain,  if  necessary. 
"  Whereupon  the  said  Lyman  further  says,  that  to 
"  prove  the  truth  of  the  matters  aforesaid,  numerous 
"  facts  will  be  important,  which  took  place  before  he 
"  was  himself  of  an  age  to  have  personal  knowledge 
"  of  the  political  affairs  of  the  country  or  of  the  in- 


(     49     ) 

"  dividuals  who  had  the  management  of  the  same, 
"  and  which  it  will  require  much  time  to  investigate ; 
"  that  the  said  matters  involve  inquiries  of  an  ancient 
"  date,  to  be  made  of  various  aged  persons  in  distant 
"  parts  of  the  United  States,  whose  attendance  it  will 
"  not  be  possible  for  said  Lyman  to  procure  at  the  pre- 
"  sent  term.  But  the  facts  of  which  the  said  Lyman  is 
"  already  informed  and  which  he  is  advised  are  mate- 
"  rial  to  this  part  of  his  defence,  are  as  follows,  viz. : — 
"  The  said  Lyman  believes  and  expects  to  prove  that 
"  the  said  John  Quincy  Adams  did  in  fact  write  and 
"  publish,  or  cause  to  be  written  and  published  in  the 
"  said  National  Intelligencer,  the  said  statement  re- 
"  ferredtoinsaid  supposed  Libel,  and  this  said  Lyman 
"  expects  to  prove  either  by  Gales  and  Seaton,the  ed- 
"  itors  of  said  National  Intelligencer,  or  one  of  them, 
"  or  by  the  said  John  Quincy  Adams,  all  which  per- 
"  sons  are  now  without  this  Commonwealth,  and  can- 
"not  be  procured  to  attend  the  trial  at  this  Term; 
"  but  the  said  Lyman  further  says  that  he  has  a  rea- 
"  sonable  expectation  that  the  said  John  Quincy  Ad- 
"  ams  will  return  within  this  Commonwealth  in  season 
"  to  attend  the  trial  at  the  next  Term  of  this  court. 
"  And  the  said  Lyman  further  believes  and  expects 
"  to  prove,  that  the  persons  so  referred  to,  by  said  Ad- 
"  ams,  as  aforesaid,  were  the  eminent  men  of  a  cer- 
"  tain  political  party  in  New  England,  then  known  as 


(     50     ) 

"the  Federal  party:  and  that  the  said  Daniel  Web- 
"  ster  was  in  and  about  the  year  1808,  and  for  many 
"  years  after  that  time,  an  eminent  and  conspicuous 
"  member  of  said  Federal  party,  and  being  a  person 
"  of  distinguished  talents  and  influence,  and  enjoy  - 
"  ing  the  general  confidence  of  thesaid  Federal  party, 
"  did  participate  in,  and  by  means  of  his  said  talents 
"  and  influence  greatly  urge  and  promote  the  mea- 
"  sures  of  opposition  to  the  embargo  and  restrictive 
"  system,  then  pursued  by  the  General  Government, 
"  and  deemed  so  injurious  and  oppressive  to  this  sec- 
"  tion  of  the  Union,  which  facts  said  Lyman  expects 
"  to  prove  by  divers  persons  resident  in  the  State  of 
"  New  Hampshire,  but  of  whose  names  and  residence, 
"  said  Lyman  is  not  yet  informed,  but  said  Lyman's 
"  reason  for  believing  that  he  can  prove  the  same  is, 
"  that  the  samearethings  commonly  reported  and  be- 
"  lieved,  but  the  said  Lyman  is  not  yet  informed  (nor 
"  can  he  during  the  present  term  procure  such  in- 
"  formation  together  with  the  other  evidence  neces- 
"  sary  to  his  defence)  who  are  the  persons  who  know 
"  said  facts  of  their  own  knowledge.  And  the  said  Ly- 
"  man  further  expects  to  prove  and  verily  believes 
"that  said  John  Quincy  Adams  did,  on  or  about 
"  the  year  1808,  write  to  divers  persons  then  high  in 
"  office  in  the  Government  of  the  United  States,  and 
"  among  others  to  William  B.  Giles,  then  a  mem- 


(     51      ) 

"  her  of  Congress  from  the  State  of  Virginia,  sim- 
"  dry  secret  and  confidential  letters,  or  make  other 
"  confidential  communications  denouncing  the  said 
"  Federal  party,  or  the  leaders  thereof,  as  engaged  in 
"  treasonable  projects  of  resistance  to  the  General 
"  Government,  and  for  dissolving  the  Union.  The 
"  said  Lyman's  reasons  for  believing  and  expecting 
"to  be  able  to  prove  that  said  Adams  did  so  write, 
"or  communicate,  are  deduced  from  said  Adams's 
"  said  statement,  said  Lyman  expects  to  prove  the 
"  same,  at  the  next  Term,  by  the  said  Adams's  own 
"  testimony,  or  that  of  said  William  B.  Giles,  who  is 
"  an  aged  and  infirm  man,  and  cannot  attend  the  trial 
"  at  this  Term ;  and  by  other  persons  to  whom  the  said 
"  Adams  wrote,  or  communicated  as  aforesaid,  but 
"  who  are  not  resident  in  this  Commonwealth,  and 
"  are  at  present  unknown  to  said  Lyman. 
"  And  the  said  Lyman  further  says  that  he  expects 
"  and  believes  that  he  shall  be  able  to  obtain  all  the 
"  evidence  aforesaid  in  season  for  a  trial  at  the  next 
"  term  of  this  court.  «  THEODORE  LYMAN,  JR. 

"SUFFOLK,  ss.  Sworn  to  in  Court  Nov.  17, 1828. 

"  JNO.  CALLENDER,  Clerk" 

James  T.  Austin,*  who  was  the  Commonwealth's 

*  James  Trecothic  Austin  was  born  in  Boston,  January  7,  1784,  was  grad- 
uated from  Harvard  in  1802,  was  Town  Advocate  in  Boston  in  1809,  a  mem- 
ber of  the  Constitutional  Convention  in  1820,  State  Senator  in  1825, 1826  and 


(     52      ) 

Attorney,  or  as  the  office  is  now  termed,  District 
Attorney,  for  Suffolk  County,  and  Richard  Fletcher, 
a  leading  member  of  the  Bar,  and  intimate  friend  of 
Webster,  appeared  for  the  Commonwealth,  and  Chief 
Justice  Parker  postponed  the  hearing  of  the  motion 
until  the  next  day,  when  the  Solicitor-General,  Dan- 
iel Davis,  appeared  and  filed  the  following  objections 
to  the  affidavit  of  Lyman. 

"  SUFFOLK,  ss.  SUPREME  JUDICIAL  COURT.  NOVEMBER  TERM,  1828. 

"COMMONWEALTH  vs.  THEODORE  LYMAN,  JR. 
"  Objections  to  the  affidavit  of  defendant  as  a  ground  of  the 

"  motion  for  a  continuance. 
..  np 

1  HE  defendant  does  not  state  in  the  affidavit  that 

"  the  publication  originated  in  mistake,  or  misappre- 
"  hension;  nor  does  he  in  any  manner  disavow  an  in- 
"  tention  of  publishing  anything  derogatory  to  the 
"  character  of  Mr.  Webster. 

"  Nor  does  he,  in  a  direct  and  unequivocal  manner, 
"  state  that  he  can,  or  expects  to,  prove  the  truth  of 
"  the  matter  alleged  to  be  libellous  or  any  part  of  it. 
"  He  does  not  swear  in  any  part  of  the  affidavit  that 
"  he  himself  believes  that  what  he  published  is  true. 
"  The  matter  charged  as  libellous  is  '  that  Mr. 
"  Adams  distinctly  asserts  that  Mr.  Webster  (with 
"others)  were  engaged  in  a  plot  to  dissolve  the 

1832,  and  Attorney-General  from  1832  to  1843,  when  the  office  was  abol- 
ished. He  died  May  8,  1870. 


DANIEL  DAVIS 

From  a  Painting  in  the  possession  of  Captain  Charles  Henry  Davis,  U.  S.  N. 


(     53     ) 

"  Union,  and  re-annex  New  England  to  Great  Brit- 
"ain;  and  that  Mr.  Adams  possessed  unequivocal 
"  evidence  of  that  most  solemn  design.'  But  the  de- 
"  fendant  does  not  swear  that  he  expects  to  be  able 
"  to  prove  that  Mr.  Adams  ever  in  fact  made  such 
"  an  assertion ;  nor  does  he  declare  that  such  an  as- 
"  sertion  if  made  was  true. 

"  The  publication  alleges  that  *  Mr.  Adams  has 
"  placed  the  name  of  Mr.  Webster  (with  others)  upon 
"  a  secret  record  in  the  archives  of  our  Government, 
"  as  traitors  to  their  Country.' — But  the  defendant 
"  does  not  state  that  he  expects  to  prove  it. 
"  The  defendant  swears  that  he  is  advised  that  he 
"  may  give  in  evidence  the  truth  of  the  several  mat- 
"  ters  contained  in  the  alleged  libel,  but  he  does  not 
"  swear  that  he  expects  to  be  able  to  prove  the  truth 
"  of  them  or  any  part  of  them. 
"  The  affidavit  states  the  necessity  of  making  re- 
"  searches  into  the  history  of  the  country,  and  of 
"  consulting  aged  persons,  &c.  but  the  defendant 
"  does  not  swear  that  he  expects  that  such  researches 
"  and  enquiries  will  furnish  any  evidence  that  Mr. 
"  Adams  made  any  such  assertion  as  to  Mr.  Webster 
"  as  the  libel  states,  or  that  Mr.  Adams  did  in  fact 
"  place  the  name  of  Mr.  Webster  on  the  records  and 
"  among  the  archives  of  our  government  as  a  traitor 
"  to  his  country,  as  the  libel  alleges.  After  the  sev- 


(     54     ) 

"  eral  introductory  matters  contained  in  the  affidavit, 
"  the  defendant  proceeds  to  state  '  that  to  prove  the 
"matters  aforesaid,  numerous  facts  will  be  impor- 
"  tant,  which  took  place  before  the  defendant  was  of 
"  an  age  to  have  personal  knowledge  of  political  af- 
"  fairs';  but  these  matters  aforesaid  do  not  relate  to 
"  the  '  matters '  stated  in  the  libel;  but  other  general 
"  and  wholly  irrelevant  matters. 
"  As  to  all  these  statements  in  the  affidavit,  the  de- 
"  fendant  neither  swears  that  he  believes  the  charges 
"  in  the  libel  are  true,  nor  that  he  expects  to  be  able 
"  to  prove  them ;  nor  that  he  expects  to  prove  that 
"  Mr.  Adams  made  the  assertions  imputed  to  him. 
"  The  defendant  then  swears  that  he  expects  to  prove 
"the  following  facts: 

"  1.  That  Mr.  Adams  did  write  and  publish  the  article 
"  in  the  National  Intelligencer  referred  to  in  the  sup- 
"  posed  libel.  The  fact  will  be  admitted  on  the  trial. 
"  2.  That  the  persons  referred  to  by  Mr.  Adams  were 
"  eminent  men  in  a  certain  political  party  in  New 
"  England — but  he  does  not  state  the  absence  of  any 
"  witness  necessary  to  prove  this — and  if  he  should 
"  the  fact  will  be  admitted. 

"  3.  That  Mr.  Webster  was  in  and  about  the  year 
"  1808,  a  member  of  the  Federal  party,  and  did  use 
"  and  promote  the  measures  of  opposition  to  the  em- 
"  bargo  and  restrictive  system,  but  this,  if  proved, 


(      55     ) 

"  has  no  relation  whatever  to  the  libellous  matter  be- 
"  fore  stated.  But  it  will  be  admitted  on  the  trial, 
"  that  in  1808  Mr.  Webster,  in  the  political  divisions 
"  of  those  times  was  a  Federalist;  that  so  far  as  the 
"  open  expression  of  opinions  against  the  embargo, 
"  and  non-intercourse,  constituted  opposition  to  those 
"  measures,  he  did  oppose  them.  And  if  the  defend- 
"ant  means  that  he  opposed  them  by  any  other 
"means  or  measures  of  opposition,  they  ought  to 
"  have  been  stated  in  the  affidavit. 
"  4.  The  affidavit  states  that  the  defendant  expects 
"  to  prove  that  Mr.  Adams,  in  the  year  1808,  wrote 
"  letters  to  persons  high  in  office  or  made  other  con- 
"  fidential  communications,  denouncing  the  Federal 
"  party  or  leaders  thereof,  as  engaged  in  treasonable 
"  projects.  But  defendant  does  not  swear  that  he  ex- 
"  pects  to  prove  that  said  communications,  if  made, 
"  included  the  name  of,  or  had  any  reference  to  Mr. 
"  Webster.  The  ground  of  belief  in  this  respect,  is 
"  alleged  to  be  the  publication  of  Mr.  Adams  before 
"  referred  to;  but  that  publication  affords  no  ground 
"  or  pretense  for  such  belief,  because  it  refers  wholly 
"to  persons  in  Massachusetts, — nor  is  it  alleged  in 
"  the  affidavit,  that  defendant  expects  to  prove  that 
"  Mr.  Webster  in  1807  and  1808  was  one  of  the 
"  leaders  of  the  Federal  party  in  Massachusetts. 
"  Lastly,  if  the  defendant  will  swear,  that  he  him- 


(     56     ) 

"  self  believes  that  the  matters  contained  in  his  pub- 
"  lication  and  charged  in  the  indictment  as  libellous, 
"are  true;  or  that  he  expects  to  be  able  to  prove 
"  them  to  be  true,  the  Solicitor  General  will  agree  to 
"  a  continuance,  without  the  defendant's  being  obliged 
"  at  this  time,  to  state  particularly  by  what  evidence 
"  he  expects  to  prove  them. 

"And  therefore,  the  Solicitor-General  moves  the 
"  Court  that  the  following  interrogatories  may  be 
"  put  to  the  defendant,  and  that  the  said  interroga- 
"  tories  and  defendant's  answers  may  be  made  a  part 
"  of  his  affidavit. 

"  1.  Interrogatory.  Do  you  expect  to  be  able  to  prove 
"that  Daniel  Webster  in  the  years  1807  and  1808, 
"  entered  into  a  plot  to  dissolve  the  Union,  and  re- 
"  annex  New  England  to  Great  Britain  ? 
"  2.  Interrogatory.  Do  you  expect  to  prove  that  John 
"  Quincy  Adams  ever  asserted  that  Daniel  Webster 
"  entered  into  a  plot  as  stated  in  the  preceding  inter- 
rogatory? 

"3.  Interrogatory.  Do  you  expect  to  prove  that 
"Mr.  Adams  ever  denounced  Mr.  Webster  as  a 
"  traitor  in  1807  and  1808,  or  that  he  ever  placed  his 
"  name  as  a  traitor  to  his  Country,  upon  any  record 
"among  the  archives  of  the  Government  of  the 
"United  States?" 
"  4.  General  Interrogatory.  Do  you  expect  to  prove 


(     57     ) 

"  that  the  matter  charged  as  libellous  in  your  publi- 
"  cation  so  far  as  respects  Mr.  Webster,  is  true?" 

The  Solicitor-General  also  filed  the  following 
statement  of  what  he  would  admit  upon  the  trial. 

"COMMONWEALTH  vs.  THEODORE  LYMAN,  JR. 
"  THE  Solicitor  General  will  admit  at  the  trial  of  the 
"  above  cause  the  following  facts : 
"  1.  That  Mr.  John  Quincy  Adams  did  publish  the 
"  statement  ascribed  to  him,  and  printed  in  the  Na- 
"  tional  Intelligencer. 

"  2.  That  the  printed  letter  of  Mr.  Jefferson  to  Mr. 
"  Giles,  was  written  by  and  to  said  persons,  dated 
"  25  Decr.  1825. 

"  3.  That  Mr.  Webster  in  1808  was  an  eminent  and 
"  conspicuous  member  of  the  Federal  party  &c.  &c. 
"  in  the  terms  of  the  affidavit. 

"  4.  That  Mr.  Adams  wrote  such  letters  to  Mr.  Giles 
"  and  others,  as  he,  Mr.  Adams,  says  in  his  said  state- 
"  ment  he  wrote  to  Mr.  Giles  and  others. 
"  But  it  is  not  admitted  that  Mr.  Webster  was  com- 
"  prehended  or  included  in  the  terms  of  Mr.  Adams's 
"  statement." 

Mr.  Lyman  declined  to  answer  the  interrogatories 
of  the  Solicitor-General,  and  on  November  24,  Chief 
Justice  Parker  denied  the  motion  for  a  continuance, 
and  the  case  was  then  by  consent  of  counsel  assigned 


(     58     ) 

for  trial  on  December  15,  when  it  was  postponed  un- 
til December  16. 

The  distinguished  character  of  the  parties,  as  well 
as  the  political  considerations  attending  the  case,  gave 
dignity  and  interest  to  the  trial.  A  prosecution  for 
criminal  libel  in  which  Daniel  Webster  was  the  prose- 
cutor and  Theodore  Lyman,  Jr.,  the  defendant,  and 
in  which  charges  made  by  the  President  of  the  United 
States  against  the  most  distinguished  citizens  of  Mas- 
sachusetts were  involved,  necessarily  caused  intense 
public  interest.  The  prosecution,  though  in  form  a 
criminal  prosecution  by  the  Commonwealth  against 
Lyman,  was  in  reality  a  personal  and  political  suit 
by  Webster  against  Lyman,  and  was  so  treated  by 
the  public  and  the  press.  Washington  papers  even 
treated  it  as  a  private  suit  by  Webster.  The  National 
Intelligencer  of  November  22, 1828,  said : "  Mr.  Web- 
"  ster  has  issued  a  writ  against  Theodore  Lyman,  Jr., 
"  Esq.,  editor  of  the  Boston  Jackson  Republican,  for 
"  designating  him  by  name,  as  one  of  those  members 
"  of  the  Federal  party  of  Massachusetts,  to  whom  Mr. 
"  Adams  has  attributed  treasonable  projects." 

The  trial  began  December  16,  at  half  past  nine 
o'clock  in  the  forenoon.  Mr.  Webster  was  present 
with  his  friends,  and  the  court  room  was  crowded 
with  leading  Federalists  and  prominent  citizens  of 
Boston. 


(     59     ) 

Mr.  Webster  was  then  forty-six  years  of  age,  and 
in  the  plenitude  of  his  power.  He  had  served  four 
years  in  Congress  as  a  member  of  the  House  from 
New  Hampshire.  He  was  a  Presidential  Elector  and 
the  most  prominent  member  of  the  Massachusetts 
Constitutional  Convention  in  1820,  a  member  of  the 
House  in  1822,  and  had  served  nearly  four  years  as 
a  member  of  Congress  from  Massachusetts.  The  pre- 
vious June  he  had  been  chosen  a  Senator  in  the  United 
States  Senate  from  Massachusetts,  but  had  not  taken 
his  seat.  He  had  argued  the  Dartmouth  College  case, 
and  other  equally  important  cases  in  the  Supreme 
Court  of  the  United  States,  and  had  delivered  the 
wonderful  orations  at  the  anniversary  of  the  landing 
of  the  Pilgrims  at  Plymouth,  the  laying  of  the  cor- 
ner-stone of  Bunker  Hill  Monument,  and  the  eulogy 
on  Adams  and  Jefferson.  He  had  also  made  other 
speeches  and  arguments  and  delivered  other  orations 
which  firmly  established  his  reputation,  not  only  as 
the  most  distinguished  citizen  of  Massachusetts,  but 
as  one  of  the  ablest  lawyers  and  the  most  eloquent 
orator  of  the  United  States.*  His  reputation  had  be- 
come not  only  national,  but  international,  and  he  had 

'Webster  argued  the  Dartmouth  College  case  in  1818;  McCulloch  vs. 
Maryland  in  1819,  and  delivered  the  oration  on  the  landing  of  the  Pilgrims 
in  1820.  He  made  his  speech  on  the  Greek  revolution  and  argued  the  case 
of  Gibbons  vs.  Ogden  in  1824 ;  he  delivered  the  oration  at  the  laying  of  the 
corner-stone  of  the  Bunker  Hill  Monument  in  1825,  and  the  eulogy  on 
Adams  and  Jefferson  in  1826. 


(      60     ) 

already  taken  on  that  lordly  manner  best  known  as 
"Websterian."  He  had  become  a  personal  political 
force  in  the  Commonwealth,  and  his  control  of  affairs 
was  such  that  the  prosecuting  officers  of  the  State 
seem  to  have  been  mere  instruments  in  his  hands  in 
the  prosecution  of  Mr.  Lyman. 

Mr.  Lyman  himself  was  not  an  unknown  man. 
He  was  not,  as  Mr.  Curtis  calls  him,  simply  "a 
gentleman  of  high  social  standing,"  but  was  also  one 
of  the  most  accomplished  and  eminent  citizens  of 
the  Commonwealth.  Born  in  1792,  he  was  graduated 
from  Harvard  College  in  1810,  and  then  studied  in 
the  University  of  Edinburgh.  He  had  done  excellent 
literary  work,  publishing  "The  Political  State  of 
Italy,"  in  1820,  and  "The  Diplomacy  of  the  United 
States,"  in  1826.  He  had  been  from  1820  to  1823 
on  the  staff  of  the  Governor  of  the  Commonwealth 
with  the  rank  of  General,  and  from  1823  to  1827,  he 
had  commanded  the  "Boston  Brigade."  He  had  also 
been  a  prominent  member  of  the  House  in  1820, 
1821, 1822, 1823  and  1825,  and  in  1824  he  was  a  State 
Senator.  He  wrote  a  vigorous  style  inherited  perhaps 
from  his  father,*  who  in  1795  wrote  to  Timothy  Pick- 
ering of  their  political  opponents  in  Boston:  "They 

*  Mr.  Lyman's  mother  was  a  niece  of  Timothy  Pickering,  and  his  father, 
Theodore  Lyman,  was  a  son  of  Rev.  Isaac  Lyman,  who  was  graduated 
from  Yale  in  1747,  and  was  pastor  of  the  church  at  Old  York,  Maine.  One 
of  his  sisters  married  Samuel  A.  Eliot,  and  was  the  mother  of  Charles  W. 
Eliot,  President  of  Harvard  College. 


(     61     ) 

yelp  and  howl  and  trumpet  treason  at  every  corner."  * 
His  subsequent  life  showed  the  kind  of  man  he  was. 
In  1834  and  1835  he  was  Mayor  of  Boston,  and  first 
promoted  the  introduction  of  pure  water  into  the 
city.  While  he  was  Mayor  he  protected  Catholics 
from  a  brutal  Protestant  mob,  and  at  great  personal 
risk  protected  abolitionists  from  a  pro-slavery  mob 
in  1835.  He  became  President  of  the  Boston  Farm 
School,  and  of  the  Prison  Discipline  Society,  and  in 
1846  he  anonymously  gave  ten  thousand  dollars  to 
aid  in  establishing  the  State  Manual  Labor  School,  t 
When  he  died,  in  1849,  he  gave  by  his  will  fifty  thou- 
sand dollars  to  aid  this  school,  making  with  his  other 
gifts  to  the  school  seventy-two  thousand  five  hun- 
dred dollars,  and  also  gave  ten  thousand  dollars  to 
the  Boston  Farm  School. 

It  required  courage  of  a  high  order  for  a  gentle- 
man of  Mr.  Lyman's  social  and  political  standing  to 
advocate  the  election  of  Jackson  in  Massachusetts 
in  1828.  Jackson  was  regarded  by  most  of  the  edu- 
cated and  well-to-do  people  in  Massachusetts  as  an 
ignorant  and  dangerous  man,  the  embodiment  of  all 
that  was  bad  in  political  life.  The  great  social,  finan- 
cial and  political  influences  of  the  community  were 

*  Life  of  Timothy  Pickering,  vol.  iii,  p.  178. 

tThis  school  was  opened  at  Westboro,  November  1,  1848,  as  the  "State 
Reform  School,"  but  in  1885  its  name  was  changed  to  the  "  Lyman  School 
for  Boys  at  Westboro." 


(     62     ) 

opposed  to  him,  and  all  these  influences  were  natu- 
rally arrayed  against  Mr.  Lyman  in  this  trial.  The 
very  atmosphere  of  Boston  was  hostile  to  him  because 
he  was  for  Jackson.* 

But  Mr.  Lyman,  although  a  refined,  sensitive 
man,  was  a  man  of  high  spirit,  and  he  did  not  flinch 
from  the  attack  of  Webster,  but  went  through  the 
ordeal  of  the  trial  with  the  steady  courage  of  a 
gentleman. 

The  trial  was  in  what  was  then  the  "New  Court 
House"  on  School  Street,  sometimes  called  "John- 
son Hall,"  on  the  site  of  the  present  City  Hall,t  and 
was  conducted  in  that  orderly  and  dignified  method 
of  judicial  procedure  which  isthe  distinguishing  mark 

*  The  Jackson  electors  received  only  6016  votes  out  of  a  total  vote  of 
35,892  in  Massachusetts.  In  Boston  they  received  only  846  out  of  a  total  of 
4106 ;  Harrison  Gray  Otis  and  William  Prescott,  candidates  of  "  certain 
Federal  gentlemen,"  received  147  votes,  and  the  Adams  electors  received 
3113. 

t There  was  then  an  "Old  Court  House"  on  Court  Street,  which  was 
first  called  Prison  Lane,  because  the  first  prison  was  built  upon  it,  where 
the  present  Old  Court  House  now  stands.  In  1708  this  Lane  was  called 
Queen  Street.  Afterwards  this  prison  was  taken  down,  and  a  new  stone 
prison,  called  "The  Gaol,"  was  erected  on  its  site.  This  was  burned  Janu- 
ary 30,  1769,  and  the  first  Court  House  of  brick,  three  stories  high,  with 
a  cupola  and  a  bell,  was  then  built  on  the  site.  In  this  building  all  the 
Courts  of  law  were  held  until  the  Court  House,  sometimes  called  "John- 
son Hall,"  was  built  on  School  Street,  in  1810.  The  Court  House  on  Queen 
Street,  or,  as  it  had  then  been  named,  Court  Street,  was  then  called  "The 
Old  Court  House."  A  gaol  had  then  been  built  in  the  space  between  the 
Old  Court  House  on  Court  Street  and  the  New  Court  House  on  School 
Street,  on  the  site  of  the  old  "  Poor  Debtors'  Gaol."  In  1833  a  Court  House 
on  Court  Street  was  built  on  the  sites  of  the  Old  Court  House  of  1769  and 
the  Gaol.  This  was  completed  in  1836,  and  occupied  by  all  the  Courts  until 
1891,  when  the  present  Court  House  in  Pemberton  Square  was  completed 
and  occupied  by  the  Courts,  and  the  Court  House  on  Court  Street  again 
became  "The  Old  Court  House." 


(     63     ) 

of  the  administration  of  justice  by  the  English-speak- 
ing race. 

Isaac  Parker,  Chief  Justice  of  the  Supreme  Ju- 
dicial Court,  presided,  Daniel  Davis,  Solicitor-Gen- 
eral, appeared  for  the  prosecution,  Samuel  Hubbard* 
and  Franklin  Dexter  (a  son  of  Samuel  Dexter  of  the 
Hartford  Convention)  appeared  for  Mr.  Lyman.  The 
jurors  summoned,  from  whom  the  jury  for  the  case 
were  to  be  drawn,  were  present.  The  Clerk  said: 
"  Theodore  Lyman,  Jr.,  you  are  now  to  be  tried,  and 
"  these  good  men  whom  I  shall  call  are  to  pass  be- 
"  tween  the  Commonwealth  and  you  upon  your  trial. 
"  If  you  object  to  any  of  them,  you  must  do  it  as 
"  they  are  called,  and  before  they  are  sworn." 

The  names  of  the  following  jurors  were  then  drawn 
by  the  Clerk,  and  they  answered  to  their  names.  No 
objection  was  made  by  Mr.  Lyman  to  any  of  them. 
The  names  of  the  jurors,  with  their  occupations  and 
residences  as  shown  in  the  Boston  Directory  of  1828, 
are  as  follows : 

WILLIAM  B.  SVVETT,  Merchant,  Foreman,  16  Custom  House 

Street; 

FRANCIS  HALL,  Distiller,  560  Washington  Street; 
THOMAS  HUNTING,  Merchant,  6  Orange  Place; 

*  Samuel  Hubbard  was  born  in  Boston,  June  2, 1785,  was  graduated  from 
Yale,  1802,  was  a  member  of  the  House  in  1816,  -17,  1820  and  1831,  a 
member  of  the  Constitutional  Convention  of  1820,  State  Senator  in  1823, 
1824  and  1838,  and  an  Associate  Justice  of  the  Supreme  Judicial  Court 
from  1842  until  his  death  in  Boston,  December  24,  1847. 


(     64     ) 

CHARLES  LANE,  Merchant,  53  Brattle  Street ; 
WYMAN  HARRINGTON,  Mason,  8  Wan-en  Street; 
BENJAMIN  BROWN,  Painter,  6  Hawkins  Street; 
JOHN  G.  VALENTINE,  Upholsterer,  13  Poplar  Street; 
NATHANIEL  H.  WHITAKER,  Auctioneer,  14  Province  House 

Court; 

JONAS  B.  BROWN,  Merchant,  1  Brattle  Square; 
CHARLES  R.  ELLIS,  Merchant,  691  Washington  Street; 
FREDERICK  GOULD,  Clothing  store,  172  Ann  Street; 
ALBERT  SMITH,  Saddler,  Chambers  Street. 

The  jurors  then  took  the  following  oath,  the  Clerk 
saying: 

"  Hold  up  your  right  hands :  You  do  each  of  you 
"  solemnly  swear  that  you  shall  well  and  truly  try 
"  the  issue  between  the  Commonwealth  and  the  de- 
fendant according  to  your  evidence,  so  help  you 
"God."* 

The  Clerk  said :  "  Gentlemen  of  the  Jury,  hearken 
to  an  indictment  found  against  the  Defendant  by 
the  Grand  Inquest  for  the  body  of  this  County." 
And  then  the  long  indictment  was  read  to  the  jury 
by  the  Clerk. 

Solicitor-General  Davis  opened  the  case  for  the 
prosecution  by  saying,  "The  character  and  standing 
"  of  the  parties,  as  well  as  the  nature  of  the  allegations 
"  against  Mr.  Webster,  give  the  trial  a  peculiar  inter- 


*  Massachusetts  Laws,  1807,  ch.  140.  Commonwealth  vs.  Anthes,  5  Gray, 
275. 


(     65     ) 

"  est.  The  high  character  of  the  defendant  in  this 
"  prosecution  is  well  known  to  the  jury.  He  has  been 
"  before  the  public  in  offices  of  honor  and  trust,  and  is 
"  deservedly  esteemed,  not  only  by  his  own  more  in- 
"  timate  acquaintances,  but  by  the  whole  public,  and 
"  had  this  attack  been  only  of  an  ordinary  kind,  usual 
"  in  the  common  newspapers  of  the  day,  no  public 
"  prosecution  would  have  been  instigated.  .  .  . 
"  But  the  accusation  is  of  a  high  and  aggravated  na- 
"  ture,  and  through  the  columns  of  the  Jackson  Re- 
"  publican  has  a  circulation  coextensive  with  his  name 
"  which  gives  the  title  to  the  paper  itself.  It  is  against 
"  a  Senator  of  the  United  States,  and,  indirectly,  im- 
"  plicates  the  character  of  the  Nation.  Mr.  Webster  is 
"  a  member  of  the  Senate  of  the  United  States,  a  re- 
"  presentative  of  the  sovereignty  of  Massachusetts  at 
"  the  national  councils.  In  his  character,  therefore,  the 
"  Commonwealth  is  peculiarly  interested. .  .  . 
"  Mr.  Webster  is  accused  of  one  of  the  highest  crimes 
"  — there  is  no  degree  of  depravity  deeper  than  that 
"  which  exists  in  the  bosom  of  a  traitor.  He  has  chil- 
"  dren  and  friends  interested  in  wiping  away  the  stain 
"  created  on  the  escutcheon  of  his  reputation  by  so 
"  foul  a  charge.  The  public  good  requires  an  exami- 
"  nation  into  it,  and  the  reputation  of  our  State  at  the 
"  seat  of  government  imperiously  demands  a  thorough 
"investigation  of  its  truth  or  falsehood.  The  free- 


(     66     ) 

"  dom  of  the  press,  one  of  the  greatest  blessings  of  a 
"  free  nation,  has  been  abused  full  often,  and  imperi- 
"  ously  requires  to  be  controlled  and  repressed,  espe- 
"  cially  when  consequences  and  evils  like  those  in  this 
"  case  press  upon  the  public  peace  and  quiet.  Espe- 
"  cially  where  papers  are  set  up,  not  for  the  purpose 
"  of  a  diffusion  of  general  knowledge  and  science,  or 
"  mere  circulation  of  political  information,  but  for 
"  express  and  personal  political  objects,  and  purity 
"  of  character  is  invaded  and  the  rights  of  individuals 
"  wantonly  outraged  it  is  the  duty  of  the  guardians 
"  of  the  public  peace  to  repress  such  abuse  of  the 
"  freedom  of  the  press. 

"  If  this  is  not  done  the  consequences  will  be  the 
"  breaking  up  of  the  foundations  of  civil  society,  vio- 
"  lent  and  deadly  contests  and  one  wide  scene  of  con- 
"  fusion,  disorganization  and  blood  will  ensue.  The 
"  only  place  of  redress  against  such  outrage  and 
"  wrong  is  here  at  the  laws  and  before  a  jury  of  the 
"  country.  The  offence  of  libelling  in  all  ages  and  in 
"  every  civilized  country  has  been  punished  with 
"  marked  severity,  and  in  Greece  and  Rome  it  was  an 
"  offence  of  high  magnitude." 

The  Solicitor-General  then  analyzed  the  indict- 
ment and  alleged  libel  and  stated  the  law  applicable 
to  the  case. 

Upon  the  close  of  the  opening  argument  the  Solici- 


(     67     ) 

tor-General  put  in  evidence  a  certificate  from  the 
Speaker  of  the  House,  of  June  7, 1827,  and  a  certifi- 
cate of  the  Secretary  of  the  Commonwealth,  showing 
the  election  of  Mr.  Webster  as  Senator  in  the  United 
States  by  the  State  Legislature. 

He  then  called  Francis  O.  Dawes  as  a  witness, 
who  said  he  was  a  student  in  the  office  of  Charles 
P.  Curtis,  and  on  October  31,  at  the  request  of  Mr. 
Curtis,  he  called  at  the  office  of  the  Jackson  Repub- 
lican, and  purchased  a  copy  of  the  Republican,  con- 
taining the  alleged  libel  upon  Mr.  Webster.  He  pro- 
duced the  paper,  which  was  put  in  evidence  and  is 
still  upon  the  files  of  the  Court,  wrapped  in  the  ori- 
ginal indictment. 

The  Solicitor-General  then  called  John  Putnam, 
who  testified  that  he  was  one  of  the  publishers  of 
the  Jackson  Republican,  that  Mr.  Lyman  was  one 
of  the  proprietors,  and  that  it  had  an  extensive  cir- 
culation, principally  in  New  England,  but  more  or 
less  in  every  State  and  in  the  city  of  Washington. 

The  Solicitor-General  then  said  he  had  introduced 
the  libel,  proved  its  publication  and  its  author,  and 
therefore  for  the  present  he  should  rest  the  cause  on 
the  part  of  the  Government. 

Mr.  Franklin  Dexter*  then  made  the  opening 

*  Franklin  Dexter  was  born  in  Charlestown,  November  5, 1793,  was  grad- 
uated from  Harvard  in  1812,  studied  law  with  Samuel  Hubbard,  and  married 
a  daughter  of  William  Prescott.  He  was  a  member  of  the  Legislature  in  1824, 


(     68     ) 

statement  for  Mr.  Lyman,  saying  that  he  should  be 
extremely  brief,  as  it  was  the  wish  of  all  concerned 
that  the  case  should  occupy  but  one  day.  He  said : 
"  We  shall  endeavour  to  satisfy  the  jury  that  Mr. 
"  Lyman  never  intended  to  libel  Mr.  Webster,  and 
"  that  the  prosecution  originated  in  a  mistake,  but 
"  still  as  the  prosecution  has  now  met  us,  we  must 
"  be  prepared  to  encounter  it  upon  its  legal  and  just 
"  merits  though  on  the  part  of  the  defendant  it  is  a 
"subject  of  regret.  The  question  the  jury  have  to 
"  decide  is  of  a  grave  nature,  for  it  concerns  the  free- 
"  dom  of  the  press  and  the  rights  which  individuals 
"have  to  discuss  questions  of  political  moment. 
"  Many  of  the  public  whom  curiosity  has  drawn  to- 
"  gether  at  this  trial  may  be  disappointed.  They  may 
"  expect  strange  developments  relative  to  former 
"  political  events,  but  no  such  developments  will  be 
"  given,  and  I  believe  little  will  arise  to  gratify  this 
"  curiosity.  ...  It  may  have  seemed  from  the  affi- 
"  davit  filed  in  this  case  by  Mr.  Lyman  that  he  in- 
"  tended  to  justify  himself  by  proving  the  truth  of 
"  his  allegations,  as  at  the  present  day  the  truth  may 
"  be  given  in  evidence,  and  by  a  recent  statute  of  the 
"  Commonwealth  amount  to  a  complete  justifica- 

1825,  1828  and  1840,  a  State  Senator  in  1835  and  United  States  District 
Attorney,  1841-1845  and  in  1849.  He  was  one  of  the  most  eminent  law- 
yers and  advocates  of  his  time,  and  was  leading  counsel  for  the  defence  in 
the  White  murder  trial  when  Webster  appeared  for  the  prosecution  in  1830. 
He  died  August  14,  1857,  at  Beverly. 


(     69     ) 

"  tion.  Still,  notwithstanding  that  affidavit,  it  is  not 
"  intended  to  attempt  to  justify  on  the  ground  of  the 
"  truth  of  the  statements  set  forth  in  the  indictment, 
"  and  I  do  not  believe  that  if  the  continuance  for 
"  which  the  affidavit  was  filed  had  been  granted,  the 
"  defence  would  have  been  the  truth  of  the  allegations 
"  setforthinthe  indictment.  The  defence  in  substance 
"  is  that  the  matter  published  by  General  Lyman 
"was  not  in  itself  libellous  so  far  as  Lyman  was 
"  concerned,  and  that  General  Lyman  had  no  ma- 
"  licious  intent.  The  charge  against  the  defendant  is 
"  both  serious  and  novel.  It  is  not  only,  as  is  usual 
"and  perhaps  necessary,  that  he  published  a  *  false 
"  and  malicious '  libel,  but  that  General  Lyman  was 
"  an  evil  disposed  person,  and,  intending  to  defame 
"  Mr.  Webster,  published  a  false,  malicious  and  infa- 
"mous  libel.  The  word  'scandalous'  is  common,  but 
"  my  brother  and  myself  have  searched  for  a  long 
"  period  among  the  precedents  of  the  present  and 
"  past  ages,  and  can  only  find  two  cases  where  the 
"word  'infamous'  has  ever  been  used  in  an  indict- 
"  ment  of  this  nature. 

"  General  Lyman  did  not  intend  to  bring  Mr.  Web- 
"  ster  into  disrepute.  All  he  intended  to  say  was  that 
"  Mr.  Adams  charged  the  prosecutor,  Mr.  Webster, 
"  with  having  been  a  traitor,  and  that  he,  Adams, 
"  had  placed  upon  the  records  of  the  archives  of  the 


(     70     ) 

"  Government  certain  New  England  Federal  leaders 
"  as  traitors,  and  that  Mr.  Webster,  the  prosecutor, 
"  was  one  of  them.  The  only  thing  which  General 
"  Lyman  has  done  is  to  give  an  interpretation  to  the 
"  assertion,  undoubtedly  intended  on  the  part  of  Mr. 
"  Adams.  He  has  only  given  the  names  of  those  per- 
"  sons  intended  by  Mr.  Adams  to  have  been  meant, 
"  and  has  merely  given  a  direction  to  the  intended 
"  object  of  the  calumny  of  another.  The  persons  said 
"  to  have  been  libelled  with  Mr.  Webster  in  the  arti- 
"  cle  written  by  General  Lyman  are  his  personal 
"  friends.  Mr.  Lyman  in  the  old  divisions  of  parties 
"was  a  Federalist,  and  all  those  named  in  the  in- 
"  dictment  as  equally  libelled  with  Mr.  Webster,  al- 
though Mr.  Webster  has  been  alone  selected  as 
"  libelled,  are  the  personal  friends,  and  were  formerly 
"  the  political  friends,  of  General  Lyman.  Is  it  prob- 
"  able  that  Mr.  Lyman  intended  to  hold  up  to  pub- 
"  lie  detestation  such  men,  his  friends,  who  are  in 
"  daily  personal  union  with  him,  that  he  should  be 
"  on  such  terms  with  men  whom  he  was  willing  thus 
"  infamously  to  libel  ?  The  expressions  of  Mr.  Adams 
"  alluded  to  all  the  leading  Federalists  of  New  Eng- 
"  land,  and  would  apply  as  well  to  New  Hampshire, 
"  where  Mr.  Webster  was  then  a  leading  Federalist, 
"  as  to  Massachusetts.  General  Lyman  had  nothing 
"to  do  with  politics  until  1819,  and  then  upon  his 


(     71     ) 

"  return  from  Europe  he  found  Mr.  Webster  an  ac- 
"  tive  and  leading  Federalist  in  Boston.  It  probably 
"  escaped  his  recollection  in  hastily  penning  a  news- 
"  paper  paragraph  that  in  1808  Mr.  Webster  resided 
"  in  New  Hampshire,  but  however  that  may  be,  Mr. 
"  Webster  was  a  leading  Federalist  in  1808  and  op- 
"  posed  to  the  Embargo  and  virtually  embraced  in 
"  the  denunciation  of  Mr.  Adams." 

As  to  the  suggestion  that  Mr.  Lyman  might  have 
explained  that  he  did  not  intend  to  libel  Mr.  Web- 
ster, Mr.  Dexter  said  that  a  prosecution  was  openly 
threatened  on  the  part  of  Mr.  Webster,  and  was  a 
subject  of  common  conversation  before  even  the 
name  of  the  author  of  the  article  was  asked,  and  un- 
der such  circumstances  he  appealed  to  the  jury  to  say 
whether  it  would  not  have  been  degrading  to  Gen- 
eral Lyman  to  offer  any  apology  rather  than  to  do 
as  he  had  done — "submit  his  cause  and  motives  to  a 
jury  of  his  Country." 

Mr.  Dexter  then  introduced  evidence  for  the  de- 
fence. He  first  produced  a  certain  pamphlet  which 
he  said  was  written  by  Mr.  Webster,  called  "Con- 
siderations on  the  Embargo  Laws,"  and  offered  it,  or 
extracts  from  it,  in  evidence.  The  Solicitor-General 
said  he  was  ignorant  of  its  contents,  and  should  ob- 
ject to  its  being  put  in  evidence  without  its  being 
read  entire. 


(     72     ) 

Mr.  Dexter  then  called  Daniel  Webster  for  the 
defence  and  asked  him  whether  he  wrote  the  pam- 
phlet which  was  shown  to  him.  He  said  he  had  writ- 
ten a  pamphlet  with  that  title,  and  from  this  and  its 
size  he  presumed  it  was  the  same.  It  was  probably 
written  in  the  summer  of  1808. 

Mr.  Dexter  then  asked  him  concerning  his  author- 
ship of  the  Rockingham  Memorial.  Mr.  Webster  said 
that  question  related  to  the  year  1812,  and  he  was 
not  bound  to  acknowledge  every  passage  he  had  ever 
written,  whether  anonymous  or  not.  That  Memorial, 
however,  he  said  was  written  by  a  Committee  of 
which  he  was  chairman ;  how  far  the  writing  or  sen- 
timents were  written  by  himself,  or  how  much  they 
were  modified  by  various  members  of  the  Committee, 
he  could  not  then  tell.  At  all  events,  he  said,  he  as- 
sented to  all  contained  in  that  Memorial  at  that  time, 
and  to  the  proceedings  of  the  meeting. 

Some  discussion  ensued  as  to  the  reading  of  the 
whole  pamphlet,  whereupon  Chief  Justice  Parker 
observed  that  the  time  to  be  embraced  in  reading  it 
was  material;  that  he  had  no  doubt  but  that  Mr. 
Webster  wrote  as  strongly  against  the  embargo  as 
any  one  could.  To  this  Mr.  Webster,  speaking  from 
his  seat,  said,  "I  meant  to."  The  Chief  Justice  then 
continued,  that  for  himself  he  thought  the  Embargo 
Act  unconstitutional,  and  asked  counsel  for  Mr.  Ly- 


(     73     ) 

man  if  the  pamphlet  tended  to  show  that  Mr.  Web- 
ster was  one  of  the  individuals  intended  by  the  ob- 
servations of  Mr.  Adams.  Mr.  Hubbard  replied  that 
it  was  alleged  by  Mr.  Adams  that  an  intention  ex- 
isted on  the  part  of  the  leading  Federalists  in  New 
England  from  the  year  1808  down  to  the  close  of  the 
war,  to  sever  the  Union  and  re-annex  themselves,  or 
the  New  England  States  to  Great  Britain.  Mr.  Web- 
ster was  then  one  of  the  leading  Federalists  of  New 
England,  and  consequently  one  of  those  charged  by 
Mr.  Adams.  The  Embargo  pamphlet,  and  the  Rock- 
ingham  Memorial  acknowledged  by  Mr.  Webster  to 
have  been  written  principally  by  himself,  went  to 
show  this  fact.  If  this  was  apparent,  then  there  was 
no  malice  on  the  part  of  General  Lyman  in  classing 
Mr.  Webster  with  other  distinguished  Federalists  in 
New  England. 

The  Solicitor-General  asked  if  they  intended  to 
prove  the  truth  of  the  allegations  by  producing  the 
pamphlet,  and  that  Mr.  Webster  was  engaged  in  a 
treasonable  plot  to  dissolve  the  Union.  If  so,  they 
had  better  read  it ;  if  not,  it  was  better,  in  Scottish 
parlance,  "to  keep  their  breath  to  blow  their  broth." 

The  Chief  Justice  said  that  if  the  constitutional- 
ity of  the  Embargo  were  on  trial,  he  should  be  glad 
to  hear  the  pamphlet  read. 

Mr.  Dexter  then  offered  the  Rockingham  Me- 


(     74     ) 

morial  in  evidence,  which  the  Court  ruled  was  in- 
admissible as  inapplicable  to  the  issue. 

Mr.  Dexter  then  put  in  evidence  the  previous 
numbers  of  the  Jackson  Republican,  to  show  that 
Mr.  Webster  had  never  been  named  in  any  article 
therein  written  by  Mr.  Lyman. 

Judge  Henry  Orne,*  one  of  the  publishers  of  the 
Jackson  Republican,  then  testified  that  Mr.  Lyman 
had  written  a  number  of  articles  in  the  Republican 
which  did  not  mention  Mr.  Webster;  that  the  article 
embraced  in  the  indictment  was  written  by  Mr.  Ly- 
man; that  the  object  of  the  Republican  was  to  op- 
pose the  reelection  of  John  Quincy  Adams;  that  it 
circulated  more  or  less  in  most  of  the  States ;  that 
about  one  thousand  copies  were  printed,  but  not  all 
distributed ;  that  he  communicated  the  fact  that  Mr. 
Webster  claimed  that  the  article  was  libellous  to 
Mr.  Lyman  on  the  thirty-first  of  October,  when  he 
received  a  letter  from  Fletcher  and  Curtis  asking  who 
wrote  it. 

Benjamin  Russell  t  was  then  called  for  the  defence, 

*  One  of  the  judges  of  the  Boston  Police  Court. 

t  Benjamin  Russell  was  born  in  Boston,  September  13, 1761,  and  learned  the 
trade  of  printer  in  the  office  of  Isaiah  Thomas.  He  was  a  private  in  the  Revo- 
lutionary Army,  and  in  1784  established  the  Columbian  Centinel  of  which 
he  was  editor  for  more  than  forty  years.  He  was  a  member  of  the  House 
in  1805,  -6,  -7,  -8,  -9,  -10,  -11,  -12,  -13,  -14,  -15,  -16,  -17,  -18,  -19, 
-20  and  1821,  State  Senator  in  1822  and  1825,  a  member  of  the  Legis- 
lature in  1824,  1828,  -29,  -30,  -31,  -32,  -33  and  in  1835,  a  longer  legis- 
lative service  than  that  of  any  other  person  in  Massachusetts.  He  was  a 
member  of  the  Governor's  Council  in  1836  and  1837  and  of  the  Constitu- 


(     75     ) 

and  testified  that  he  had  heard  Mr.  Webster  say  he 
intended  to  prosecute  soon  after  the  publication  of 
October  29  in  the  Republican ;  that  he  then  asked 
Mr.  Webster  if  the  article  did  not  contain  a  libel, 
and  Mr.  Webster  replied  that  he  should  try  to  make 
it  so,  or  ascertain  the  fact,  or  words  to  that  effect. 
Russell  said  that  he  felt  proud  to  be  in  such  company 
as  he  was  ranked  amongst  in  that  libel. 

Henry  Williams  then  testified  for  the  defence,  say- 
ing he  told  Mr.  Lyman  he  had  heard  that  Mr.  Web- 
ster was  about  to  institute  a  suit  against  him  on  the 
twenty-ninth  or  thirtieth  of  October,  and  that  it 
was  the  general  report  at  Merchants'  Hall  Reading 
Room.* 

James  T.  Austin  was  called  for  the  defence,  and 
testified  that  on  the  first  of  November,  as  prosecu- 
ting officer  for  the  Government,  he  received  a  letter 
which  he  was  requested  to  lay  before  the  Grand  Jury 
as  a  complaint  against  Mr.  Lyman,  for  a  libel  on  the 
Hon.  Daniel  Webster ;  that  the  letter  was  brought 

tional  Convention  of  1820.  He  was  for  eight  years  a  member  of  the  Board 
of  Aldermen  of  Boston,  Commander  of  the  Ancient  and  Honorable  Ar- 
tillery, and  held  many  other  important  municipal  offices  and  positions  in 
charitable  and  military  organizations,  and  was  the  author  of  the  terms 
' '  Gerrymander  "  and ' '  Era  of  good  feeling. "  He  died  in  Boston,  January  4, 
1845. 

*  Merchants'  Hall  was  a  brick  four-story  building  at  the  corner  of  Congress 
and  Water  streets,  having  on  the  first  floor  the  Post-Office  and  a  subscrip- 
tion reading-room  furnished  with  the  principal  United  States  and  foreign 
newspapers,  books  for  daily  news,  announcements  of  arrival  and  sailing 
of  vessels,  maps,  prices  current,  "and  a  good  clock."  Bowen's  Boston,  p.  34. 


(     76     ) 

to  him  by  Mr.  Curtis,  and  after  he  had  read  it  he 
advised  Mr.  Curtis  to  go  with  it  directly  to  the  Su- 
preme rather  than  to  the  Municipal  Court.  Mr.  Curtis 
said  he  was  not  aware  that  the  Supreme  Court  had 
jurisdiction,  but  after  he  had  satisfied  him  on  the  fact 
that  it  had,  Mr.  Curtis  took  the  letter  away  and  after- 
wards followed  the  course  he  had  pointed  out. 

Mr.  Dexter  then  introduced  other  articles  pub- 
lished in  the  Republican,  one  being  an  article  headed 
"Political,"  and  signed  "A  Pennsylvanian,"  which 
were  furnished  by  Mr.  Lyman,  and  related  to  Mr. 
Adams's  assertions  and  to  the  subject  matter  com- 
mented on  by  Mr.  Lyman  in  his  article  which  was 
said  to  be  libellous. 

Judge  Orne  was  again  called  to  the  stand  and  stated 
that  at  the  first  establishment  of  the  Republican  a 
number  of  pamphlets  and  papers  were  sent  "  from 
the  Southward  "  to  the  paper,  and  that  Mr.  Lyman 
had  taken  or  made  such  selections  as  he  deemed  fit 
from  them ;  that  he  had  no  conference  with  Mr.  Ly- 
man previous  to  the  writing  of  the  article,  but  he  had 
seen  it  previous  to  its  publication. 

Mr.  Dexter  then  stated  as  admitted  by  the  Gov- 
ernment that  Mr.  Lyman  was  graduated  at  Harvard 
College  in  1810,  being  then  eighteen  years  of  age; 
that  he  went  to  Europe  in  1812  and  returned  in  1814 ; 
that  he  went  to  Europe  again  in  1817  on  account  of 


(     77    ) 

his  health  and  returned  in  1819,  and  took  no  part  in 
politics  until  the  winter  of  1819  and  1820. 

Warren  Dutton*  then  testified  for  the  defence  that 
he  saw  the  publication  on  Wednesday  after  it  was 
published ;  that  on  Friday  in  the  Mall  f  he  met  Gen- 
eral Lyman  and  from  him  understood  that  Mr.  Web- 
ster complained  of  the  publication.  He  understood 
Mr.  Lyman  to  say  that  he  did  not  intend  to  libel  any 
one ;  Mr.  Webster,  General  Lyman  and  himself  were 
on  friendly  terms,  and  frequently  were  together  in 
a  friendly  association,  and  he  never  knew  any  diffi- 
culty between  Mr.  Lyman  and  Mr.  Webster.  He 
said  Mr.  Lyman  was  a  Federalist  in  the  old  divisions, 
and  on  good  terms  with  Mr.  Otis,  Mr.  Thorndike, 
etc.,  named  in  the  article,  and  was  a  connection  of 
Mr.  Otis. 


*  Warren  Dutton  was  bom  in  East  Haddam,  Connecticut,  in  1774,  was  grad- 
uated from  Yale,  1793,  was  tutor  in  Yale  and  in  Williams,  and  studied  law 
with  John  Lowell,  whose  daughter  he  married  in  1806.  He  was  editor  of 
the  Palladium,  1801-3,  admitted  to  the  Bar  in  1803,  and  delivered  the  ora- 
tion before  the  Town  Authorities,  July  4,  1805.  He  was  a  member  of  the 
House  in  1809,  -10,  1820,  and  a  State  Senator  in  1821,  -22.  In  1820  he 
was  a  member  of  the  Constitutional  Convention,  and  in  February,  1821, 
was  one  of  the  managers  on  the  part  of  the  House,  in  the  impeachment 
of  James  Prescott,  Judge  of  Probate  for  Middlesex,  and  made  the  closing 
argument  against  Webster  who  was  counsel  for  Prescott.  He  was  an  ac- 
complished man,  an  eminent  lawyer  and  an  intimate  personal  friend  of 
Theodore  Lyman.  He  died  in  Brighton,  March  3,  1837. 
tin  1780  the  Mall  was  on  the  eastern  side  of  the  Common,  in  length  1410 
feet  and  divided  into  two  walks  parallel  to  each  other,  separated  by  a  row  of 
trees.  On  the  outside  of  each  walk  was  also  a  row  of  trees  which  agreeably 
shaded  it.  In  1807  it  was  a  public  walk  600  yards  in  length.  Now  (1904)  it 
is  that  part  of  the  Common  next  to  Tremont  Street,  under  which  is  the 
Subway. 


(     78     ) 

This  closed  the  testimony  for  the  defence. 

The  Solicitor-General  then  called  Mr.  Webster 
for  the  prosecution,  who  testified  that  in  1807  he 
was  a  resident  in  New  Hampshire,  and  came  to  Bos- 
ton, August,  1816;  that  in  the  years  1808  and  1809 
he  had  no  personal  or  political  acquaintance  with  the 
persons  named  in  the  alleged  libel,  though  while  a 
student  at  law  in  Boston  he  knew  Messrs.  Otis  and 
Prescott  by  sight  and  reputation,  and  not  otherwise. 
The  Solicitor-General  then  asked  Mr.  Webster  this 
question:  "Did  you  at  that,  or  any  other  period,  ever 
enter  into  any  plot  to  dissolve  the  Union?"  To 
which  Mr.  Webster  answered:  "No,  sir."  Mr.  Web- 
ster then  apparently  without  being  questioned  pro- 
ceeded to  say  that  he  would  "state  the  transactions 
relative  to  the  alleged  libel  as  they  transpired."  He 
said:  "On  the  day  of  the  publication,  or  the  next,  I 
"  was  in  the  Suffolk  Insurance  office  and  my  atten- 
"  tion  from  the  conversation  there  was  drawn  toward 
"  the  article.  It  was  also  thus  in  other  offices,  and  in 
"  conversation  with  gentlemen  on  the  street.  From 
"  this  conversation  and  from  the  connection  of  Gen- 
"  eral  Lyman  with  the  Republican  I  had  some  reason 
"  to  believe  that  he  might  possibly  be  the  author.  I 
"  distinctly  stated  at  about  this  period  that  I  should 
"  not  prosecute  the  publishers  of  the  paper  for  this, 
"what  I  should  call,  atrocious  libel,  for  I  had  ob- 


(     79     ) 

"  served  that  the  paper  was  printed  for  the  proprie- 
"  tors,  but  that  when  I  should  find  out  who  the  pro- 
"  prietors  were,  I  should  give  them  an  opportunity 
"  to  prove  the  truth  of  the  assertions.  I  then  called 
"  upon  Messrs.  Curtis  and  Fletcher  as  my  counsel, 
"  to  inquire  of  the  publishers  of  the  Republican  to 
"  know  the  author  of  the  piece  in  question.  I  then 
"  directed  my  attorneys  to  inquire  as  to  the  jurisdic- 
"  tion  of  the  Municipal  or  Supreme  Judicial  Court 
"  of  the  offence.  This  was  two  or  three  days  previ- 
"  ous  to  the  sitting  of  the  Municipal  Court  and  ten 
"  or  twelve  days  previous  to  the  session  of  the  Su- 
"  preme  Judicial  Court.  Nothing  was  then  done  or 
"  said  by  me  until  I  was  satisfied  that  General  Ly- 
"  man  knew  I  intended  to  have  a  legal  investigation. 
"  No  explanation  was  given  by  General  Lyman,  al- 
"  though  in  my  opinion  Mr.  Lyman  was  satisfied  that 
"  I  felt  injured  by  the  publication  of  the  libel.  I 
"  heard  nothing  on  the  subject  from  General  Lyman. 
"  For  myself  I  sought  no  explanation,  and  none  on 
"  the  other  hand  was  given.  Twelve  days  after  I  pre- 
"  sented  my  case  to  the  Grand  Jury." 

Charles  P.  Curtis  then  testified  for  the  prosecution, 
stating  substantially  the  same  facts  as  Mr.  Webster 
had  stated  with  regard  to  the  action  of  Mr.  Webster 
before  the  matter  was  presented  to  the  Grand  Jury, 
and  said  that  it  was  the  expectation  of  Mr.  Webster 


(     80     ) 

that  some  explanation  would  be  made  by  General 
Lyman  which  should  supersede  the  necessity  of  a 
public  prosecution.  At  this  point  Chief  Justice  Parker 
observed  that  it  was  evident  there  was  throughout 
the  whole  some  "unfortunate  misapprehension  be- 
tween the  parties." 

The  Solicitor-General  then  read  to  the  jury  the 
affidavit  which  had  been  signed  and  sworn  to  by  Mr. 
Lyman,  November  17. 

This  closed  the  evidence  in  the  case,  and  at  three 
o'clock  in  the  afternoon  Mr.  Hubbard  began  the  clos- 
ing argument  for  Mr.  Lyman.  It  was  upon  the  lines 
indicated  by  Mr.  Dexter  in  the  opening.  He  said  to 
a  common-sense  view  the  question  was  whether  the 
circumstances  of  the  case  showed  beyond  a  reason- 
able doubt  that  General  Lyman  intended  to  libel  Mr. 
Webster,  and  that  the  jury  were  to  judge  of  the  mo- 
tives of  Lyman,  which  if  they  were  innocent  and 
without  malice  did  not  make  him,  in  the  words  of 
the  indictment,  an  "infamous  libeller." 

He  said:  "It  is  a  well-known  fact  that  the  object 
"  for  which  the  Jackson  Republican  was  established 
"  was  to  oppose  the  reelection  of  Mr.  Adams  as  Presi- 
"  dent.  Mr.  Lyman  at  the  close  of  a  hot  political  con- 
"  test  publishes  a  certain  letter  of  Mr.  Adams  bearing 
"  strongly  upon  the  motives  and  conduct  of  certain 
"  leaders  of  the  Federal  party  to  show  that  he  was 


SAMUEL  HUBBARD 

From  a  Painting  in  the  possession  of  Walter  Buck,  Andover,  Massachusetts 


(     81     ) 

"  unworthy  of  their  support.  There  was  in  this  no 
"  malice  against  Mr.  Webster  on  the  part  of  Mr.  Ly- 
"  man,  but  merely  an  attempt  to  hold  up  Mr.  Adams 
"  to  public  ridicule.  He  had  a  right  to  do  this.  The 
"  Federal  party  was  once  a  dominant  one  in  the 
"  United  States.  It  was  an  honour  to  any  man  to 
"  have  belonged  to  it.  Washington  was  at  its  head. 
"  For  myself  I  feel  it  no  disgrace  to  have  been  in  its 
"  ranks.  John  Quincy  Adams  was  at  one  time  one  of 
"  its  leaders,  associated  with  those  very  men  whom 
"  he  has  publicly  denounced.  He  afterwards  disowned 
"  them  and  apostatized  from  them,  and  has  also  pub- 
"  licly  called  them  traitors  to  their  Country  in  oppos- 
"  ing  the  Embargo  Law  and  the  War.  Mr.  Lyman 
"  in  his  commentary  only  said  that  Mr.  Adams  on 
"  account  of  this  strange  charge  was  unworthy  of  the 
"  support  of  these  persons,  that  they  of  all  others 
"  had  the  least  reason  to  support  him.  This  was  per- 
"  fectly  justifiable  for  a  political  writer  to  say  in  order 
"  to  promote  the  election  of  his  own  candidate,  Gen- 
"  eral  Jackson.  When  a  person  is  to  be  chosen  to  the 
"  high  office  of  Chief  Magistrate  of  the  United  States, 
"  it  must  be  expected  that  a  full  canvass  of  the  merits 
"  of  each  candidate  will  be  made,  and  a  commentary 
"  on  such  merits  or  demerits  is  not  to  be  inferred  as 
"  malicious,  either  to  wards  the  candidates  themselves, 
"  or  their  supporters." 


(     82     ) 

In  order  to  show  that  Mr.  Webster  was  one  of  the 
leading  Federalists  of  New  England  at  the  period 
referred  to  by  Mr.  Adams,  Mr.  Hubbard  said  that 
he  would  refer  to  a  pamphlet  acknowledged  by  Mr. 
Webster  to  have  been  written  by  him  on  the  Em- 
bargo Laws.  The  Solicitor-General  objected  to  the 
reading  of  the  pamphlet,  or  reference  to  a  part  of  it, 
unless  the  whole  was  read.  Mr.  Hubbard  said  the  pam- 
phlet was  in  the  case.  He  had  a  right  to  refer  to  it, 
but  he  did  not  wish  to  read  the  whole  of  it  on  account 
of  the  waste  of  time.  The  Solicitor-General  still  ob- 
jected to  reference  to  parts  of  the  pamphlet,  and  the 
Chief  Justice  requested  Mr.  Dexter  to  read  the  whole 
pamphlet,  which  he  did. 

The  pamphlet  was  entitled,  "Are  the  Embargo 
Laws  Constitutional?"  It  discussed  at  length  the 
power  of  Congress  to  pass  an  embargo  act,  claiming 
that  it  had  no  constitutional  power  to  create  an  em- 
bargo unlimited  in  time.  It  stated  the  disastrous  ef- 
fects of  the  embargo  upon  the  United  States,  and 
showed  how  little  injury  it  did  to  either  England  or 
France  or  their  colonies.  In  this  pamphlet  Mr.  Web- 
ster charged  that  the  Embargo  Acts  originated  in 
Jefferson's  wish  to  favor  France  against  Great  Brit- 
ain, saying, "  The  administration  party  are  perpetually 
"  singing  the  praises  of  the  French  Emperor.  They 
"  rejoice  in  his  successes,  and  justify  and  applaud  his 


(     83     ) 

"  most  enormous  acts  of  injustice  and  oppression  .  .  . 
"  and  burst  forth  in  exclamations  of  rapturous  and 
"  unhallowed  joy  at  the  progress  of  successful  guilt 
"  and  violence.  They  even  blasphemed  Heaven,  and 
"  mocked  it  with  diabolical  gratitude,  when  they 
"  thanked  God  that  the  world  was  blessed  with  this 
"  detestable  tyrant." 

In  one  part  of  the  pamphlet  Mr.  Webster,  refer- 
ring to  a  statement  made  in  Congress  that  trade  with 
Canada  was  prohibited  in  order  that  "the  sufferings 
"of  our  citizens  might  be  equal,"  said,  "This  is  as 
"  if  your  physician  should  draw  one  of  your  teeth, 
"  because  it  ached,  and  should  then  propose  to  draw 
"  another,  from  the  other  side  of  your  face,  which  did 
"  not  ache,  in  order  to  make  the  'suffering  equal.'" 

There  was  much  laughter  in  Court  at  the  reading 
of  some  passages  of  the  pamphlet,  and  the  simile  of 
drawing  a  tooth  which  did  not  ache  because  one 
which  did  ache  had  been  drawn  from  the  opposite 
jaw  received  particular  applause.* 

After  the  reading  of  this  pamphlet  Mr.  Hubbard 
continued  his  argument;  saying  that  he  wished  he 
could  entertain  the  jury  as  well  by  his  argument  as 
they  had  been  entertained  by  the  pamphlet  they  had 
just  heard  read ;  that  the  pamphlet  itself  showed  that 
the  author  was  a  distinguished  writer  and  leader 

*  Report  in  Advertiser,  December  22,  1828. 


(     84     ) 

among  the  Federalists  of  New  England.  He  said: 
"  It  is  claimed  by  Mr.  Adams  that  the  people  were 
"  openly  instigated  to  violate  the  law  of  the  Em- 
"  bargo.  How  violate  a  law  if  it  was  unconstitutional  ? 
"  And  jury  after  jury  has  decided  that  it  was  so.  No 
"  unconstitutional  law  can  be  violated,  for  such  a 
"  law  is  itself  a  violation  of  the  Constitution. 
"  It  is  apparent  from  the  pamphlet,  known  to  have 
"  been  written  by  Mr.  Webster,  that  he  was  within 
"  the  legitimate  meaning  of  the  statement  of  Mr. 
"Adams, — he  was  one  of  the  leaders  of  the  New 
"  England  Federal  party  in  1808, — and  if  talents, 
"  personal  influence  and  an  opposition  to  the  restric- 
"  tive  system  of  that  period  constitute  a  leader,  Mr. 
"  Webster  was  not  only  a  leader,  but  a  powerful  one. 
"  He  was  of  the  same  class  as  Messrs.  Otis,  Parsons, 
"  Cabot,  Dexter,  Ames  and  others ;  he  was  engaged 
"  in  the  same  cause  and  had  the  same  principles.  If 
"  the  names  of  the  Federal  leaders  of  that  period  were 
"  to  be  called  who  would  think  of  omitting  the  name 
"of  Webster?  There  can  be  no  question  that  Mr. 
"  Adams  did  mean  Mr.  Webster  as  much  as  any  of 
"the  others  I  have  named." 

Mr.  Hubbard  then  discussed  at  some  length  the 
language  of  Mr.  Adams,  saying  that  the  words  "sub- 
sequent events"  used  by  him  doubtless  referred  to  the 
Hartford  Convention,  and  saying,  "I  do  not  stand 


(     85     ) 

"here  to  vindicate  the  Hartford  Convention.  The 
"  members  of  that  body,  or  most  of  them,  are  now 
"  living  and  can  vindicate  themselves  and  their  mo- 
"tives,  if  they  need  vindication.  Neither  do  I  wish 
"  to  attack  Mr.  Adams.  Each  individual  has  a  right 
"  to  his  opinions,  and  when  he  comes  before  the  pub- 
"  lie  with  them,  each  individual  has  equally  a  right 
"to  comment  on  them.  It  was  the  whole  Federal 
"  party,  of  which  Mr.  Webster  was  a  part,  which  Mr. 
"  Adams  aspersed,  and  General  Lyman  had  a  right 
"  to  make  the  application.  If  in  doing  it  he  used  the 
"  name  of  Daniel  Webster  when  Mr.  Adams  meant 
"  to  confine  his  charges  of  treasonable  plots  to  Fed- 
"  eralists  in  Massachusetts  alone,  then  Lyman's  men- 
"  tion  of  Daniel  Webster  was  a  mistake,  but  not  a 
"  malicious  and  infamous  libel.  It  is  especially  cor- 
"  rect  that  these  accusations  of  Mr.  Adams  should 
"  be  noticed  here — the  very  spot  at  which  some  of 
"  the  principal  actors  live,  and  where  an  effect  was 
"  to  be  produced.  Mr.  Adams  has  made  broad  asser- 
"tions  and  must  have  calculated  that  their  conse- 
"  quences  would  be  followed  out  by  others.  In  pur- 
"  suing  these  consequences  Mr.  Webster's  name  has 
"  been  used,  but  all  Mr.  Lyman's  remarks  meant  was 
"that  Mr.  Adams  had  disregarded  the  rights  and 
"  opinions  of  a  certain  portion  of  the  public  in  order 
"  to  further  his  own  interests,  on  which  account  he 


(     86     ) 

"  was  unfit  for  reelection,  or  that  if  he  believed  his 
"  own  statements,  then  in  consequence  of  having  re- 
"  ceived  traitors,  as  he  called  them,  to  his  councils, 
"  he  was  unworthy  of  support. 
"  My  client  is  well  known,  and  it  is  equally  known 
"  that  previous  to  the  election  of  Mr.  Adams  to  the 
"  office  of  President  he  was  opposed  to  his  election 
"  and  in  favour  of  Mr.  Crawford,  and  after  the  elec- 
"  tion  of  Mr.  Adams,  and  when  the  Federalists  sup- 
"  ported  Adams,  he  seceded  from  their  party  and  be- 
"  came  the  advocate  of  the  cause  of  General  Jack- 
"  son.  The  Federalists  generally  were  in  favor  of  Mr. 
"Adams.  General  Lyman  saw  fit  to  advocate  the 
"  cause  of  Jackson.  Whether  he  was  wise  or  not  re- 
"  mains  to  be  proved.  It  is  of  no  consequence  in  this 
"trial.  But  the  gentlemen  named  in  the  supposed 
"  libel  were  formerly  Mr.  Lyman 's  political  friends; 
"  they  were  at  the  time  when  the  alleged  libel  was 
"  published  his  personal  friends,  belonged  to  the  same 
"  club,  met  week  after  week  together.  Is  it  possible 
"  to  conceive  that  he  intended  to  libel  his  former  po- 
litical and  present  personal  friends?  The  idea  is  a 
"  monstrous  one.  The  article  bears  a  compliment  on 
"  its  very  face.  No  one  with  a  fair  mind  can  doubt 
"  General  Lyman's  intention  in  classing  Mr.  Webster 
"  with  those  eminent  gentlemen  with  whom  he  was 
"thus  associated.  All  these  other  gentlemen  are 


(     87     ) 

"  equally  libelled  if  Mr.  Webster  was  libelled.  If  it 
"  was  a  libel  upon  Mr.  Webster  it  was  also  a  libel 
"  upon  Otis,  Dexter,  Prescott,  Russell,  Mills  and  all 
"the  others  who  were  included, — but  who  among 
"  them  was  thus  libelled  by  the  publication?  Do  they 
"  deny  the  fact  that  they  were  opposed  to  the  Em- 
"  bargo,  that  they  were  influential  men,  or  do  they 
"  avow  it  and  justify  their  motives  ?  In  political  con- 
"  tests  the  parties  must  frequently  resort  to  the  publi- 
"  cation  of  names.  It  is  a  thing  to  be  expected  by  those 
"  who  take  part  in  the  contests  of  the  day.  It  is  every- 
"  day  practice.  If  General  Lyman  had  not  a  malicious 
"  intent  to  libel  all  these  gentlemen,  then  he  did  not 
"  intend  to  libel  Mr.  Webster,  for  they  are  all  equally 
"  included  in  the  article.  I  have  as  high  an  opinion 
"  of  the  character  of  Mr.  Webster  as  has  the  Solicitor, 
"  but  it  is  not  for  me  at  this  time  to  sound  Mr.  Web- 
"  ster's  praise.  I  shall  leave  that  to  the  Solicitor,  who 
"  has  said  that  this  was  emphatically  the  prosecution 
"  of  the  Commonwealth,  whose  duty  it  is  to  protect 
"  the  character  of  its  citizens." 

Turning  to  the  Solicitor-General,  he  said :  "  I  will 
"  ask  of  him, — Where  was  the  kind  care  of  Govern- 
"  ment  when  her  best  citizens,  her  mighty  living  and 
"  mighty  dead,  were  traduced  and  vilified  by  Mr. 
"Adams?  When  such  men  as  Otis,  Ames,  Dexter 
"  and  a  long  list  of  living  and  departed  patriots  were 


(     88     ) 

"  branded  with  the  name  of  traitors?  Did  the  Soli- 
"  citor  think  General  Lyman  intended  the  paragraph 
"  on  which  this  prosecution  is  founded  as  a  malicious 
"  libel  on  these  men  when  he  first  read  it?  If  it  is  so 
"  apparently  a  malicious  and  infamous  libel,  how  can 
"  my  friend,  Mr.  Dexter,  associated  with  me  in  this 
"  defence,  sit  here  to  protect  Mr.  Lyman,  who  has 
"  thus  infamously  libelled  his  deceased,  lamented  and 
"respected  father  and  his  honoured  father-in-law?* 
"  No  one  in  his  senses  can  say  that  it  would  be  pos- 
"  sible  for  him  to  do  it.  Does  Mr.  Otis,  or  any  other 
"  of  these  gentlemen,  complain  of  this  charge  of  Mr. 
"  Adams,  or  feel  aggrieved  at  the  comments  of  Gen- 
"eral  Lyman?  Certainly  not. 
"  Mr.  Lyman  only  called  the  attention  of  the  reader 
"  to  those  persons  who  were  intended  by  Mr.  Adams 
"  in  his  absurd  and  ridiculous  charge.  If  Mr.  Adams 
"  said  that  the  leading  Federalists  of  New  England 
"  were  traitors,  has  not  any  member  of  the  commu- 
"  nity  a  right  to  say  who  were  leaders  or  traitors  ? 
"  When  the  most  eminent  men  and  greatest  char- 
"  acters  are  thus  traduced,  have  not  the  community 
"  a  right  to  know  the  fact,  and  also  to  be  informed 
"  who  these  men  are  ?  Has  not  an  individual  a  right 
"  to  ask  of  the  community,  whether  the  public  will 


*  Franklin  Dexter  was  the  son  of  Samuel  Dexter,  and  married  a  daughter 
of  William  Prescott. 


(     89     ) 

"  support  this  traducer  for  the  first  office  in  the  gift 
"of  the  people? 

"  Mr.  Adams  meant  somebody.  It  has  been  said  that 
"  corporations  have  no  souls.  Perhaps  the  Federal 
"  party  as  such,  or  as  a  body,  are  in  the  same  pre- 
"  dicament.  Yet  its  leaders  have  souls,  among  whom 
"is  to  be  included  Mr.  Webster.  If  he  was  no 
"  leader  at  the  period  spoken  of,  then  General  Ly- 
"  man  was  guilty  of  a  mistake,  not  of  malice,  in  in- 
"  eluding  him  with  the  others  mentioned.  But  any 
"  man  who  could  write,  and  did  write,  such  a  pam- 
"  phlet  as  that  in  this  case  must  have  been  a  leader. 
"  The  fact  of  the  pamphlet  itself,  its  intrinsic  energy 
"  and  merit,  show  him  to  have  been  a  leader, — one 
"  who  under  any  and  all  circumstances  would  have 
"been  a  leader. 

"  The  pointing  out  of  the  individuals  alluded  to  by 
"  Mr.  Adams  was  only  descriptive  of  the  meaning 
"  of  Mr.  Adams,  done  without  any  malicious  intent 
"  towards  Mr.  Webster  and  the  others. 
"  The  prosecution  originated  in  a  mistake, — an  un- 
doubted mistake.  No  explanation  was  made  by 
"  General  Lyman,  or  called  for  by  Mr.  Webster,  and 
"no  opportunity  was  given  to  explain.* 


*  In  1882,  Mr.  Lyman's  son  transmitted  to  the  Massachusetts  Historical 
Society  a  letter  in  Mr.  Lyman's  handwriting,  stating  how  he  came  to  write 
the  alleged  libellous  article,  his  relations  with  Mr.  Webster,  and  his  views 
of  the  trial,  and  also  stating  how  the  former  relations  between  himself  and 


(     90     ) 

"  But  even  Mr.  Adams's  charge  was  not  that  of 
"  treason.  It  is  not  treasonable  to  oppose  an  uncon- 
"  stitutional  law.  Mr.  Adams  in  saying  that  the  Fed- 
"  eral  leaders  were  traitors  in  opposing  the  Embargo 
"  Law  did  not  say  anything  libellous  or  call  anybody 
"  a  traitor.  An  intention  to  commit  treason  is  not  a 
"  commission  of  treason,  and  is  not  punishable  by  law. 
"  Therefore  it  was  not  libellous  to  accuse  one  of  such 
"  an  intention.  A  confederation  of  the  New  England 
"  States  to  confer  with  each  other  on  the  subject  of 
"  dissolving  the  Union  was  no  treason.  The  several 
"  States  are  independent  and  not  dependent.  Every 
"  State  has  a  right  to  secede  from  the  Union  without 
"  committing'  treason. 

"  Here  it  is  stated  that  certain  gentlemen  were  trai- 
tors for  threatening  to  dissolve  the  Union.  The 
"  time  will  undoubtedly  arrive  when  this  subject  of 
"  a  dissolution  of  the  Union  will  be  openly  discussed 
"  in  all  parts  of  the  United  States.  .  .  . 
"  It  seems  that  the  feelings  of  Mr.  Webster  were 
"  hurt,  and  there  was  a  question  of  etiquette,  as  to 
"  who  should  make  the  first  advance.  One  waited 
"  for  an  explanation  to  be  asked,  and  the  other  for 
"  a  reparation  to  be  made.  On  the  part  of  Mr.  Web- 
"  ster,  he  was  surprised  that  General  Lyman  should 

Mr.  Webster  were  afterwards  restored.  See  Massachusetts  Historical  So- 
ciety Proceedings,  vol.  xix,  p.  323. 


(     91     ) 

"  have  written  the  alleged  libel,  and  expected  an  ex- 
"  planation,  which  not  being  offered,  he  became  an- 
"gry — even  the  greatest  men  are  not  always  free 
"  from  this  passion.  No  explanation,  however,  could 
"  be  expected  from  General  Lyman  under  the  threat 
"of  prosecution,  much  less  after  an  indictment, 
"  for  then  no  honorable  man  could  consent  to  make 
"the  explanation  required.  Mr.  Lyman  could  not 
"  then  honorably  seek  out  and  explain.  He  preferred 
"  to  meet  the  charge  at  the  hands  of  a  jury  of  his 
"  Country." 

When  Mr.  Hubbard  closed  his  argument,  the 
Court,  which  opened  at  nine  o'clock  in  the  morning, 
had  been  in  session,  with  only  an  hour's  intermission 
at  noon,  until  seven  o'clock  in  the  evening,  and  the 
Solicit  or- General  said  that  owing  to  fatigue  he  should 
not  be  able  to  do  justice  to  the  Government  by  mak- 
ing his  closing  argument  that  evening.  The  counsel 
for  Mr.  Lyman,  however,  deprecated  an  adjourn- 
ment and  objected.  But  the  Chief  Justice  said  that 
though  it  was  an  unfortunate  point  to  break  off  the 
cause,  still  the  counsel  for  the  defence  could  recapit- 
ulate the  chief  points  in  their  case  the  next  morning 
if  they  desired,  and  he  adjourned  the  Court  until 
nine  o'clock  the  next  morning. 

The  defence  then  desired  to  make  no  further  ar- 
gument, and  the  Solicitor- General,  wrapped  in  his 


(     92     ) 

cloak  in  a  heated  atmosphere  in  a  crowded  court- 
room, argued  the  case  of  the  Government  for  nearly 
three  hours. 

He  said  the  case  was  a  perfectly  plain  one;  that 
the  accusation  against  Mr.  Webster  was  of  the  com- 
mission of  one  of  the  highest  crimes  known  to  the 
law,  and  that  the  answer  was  no  more  nor  less  than 
the  admission  of  the  fact  of  such  accusation.  He  said 
he  had  a  high  respect  for  both  parties  in  both  their 
public  and  private  situations,  but  the  article  was 
libellous  and  was  malicious.  As  to  the  suggestion 
that  the  word  "infamous"  should  not  have  been  used 
in  the  indictment,  he  said  that  was  the  language  of 
the  law,  and  the  indictment  was  framed  from  one 
in  a  case  where  Lord  Mansfield  was  libelled;  that 
if  in  describing  this  libel  he  could  have  legally  called 
it  by  a  softer  name  he  would  have  said  that  "the 
"  observations  of  Mr.  Ly  man  relative  to  Mr.  Webster 
"  were  unfair,  unfriendly,  unhappy,  un-Christian,  and 
"  he  might  have  also  said  ungentlemanly,  but  the 
"  law  designated  the  terms  to  be  used." 

Continuing,  he  said  that  the  remarks  of  Mr.  Adams 
in  no  sense  applied  to  Mr.  Webster,  that  they  could 
have  had  no  reference  to  him,  and  that  there  was  as 
much  difference  between  charging  the  leading  Fed- 
eralists of  Massachusetts  in  1808  with  treason,  and 
charging  Daniel  Webster  with  treason,  as  there  was 


(     93     ) 

between  black  and  white.  Mr.  Adams,  in  speaking  of 
the  opposition  to  the  embargo  measures,  spoke  of 
the  leading  Federalists  of  the  State  in  which  he  lived, 
in  which  jury  after  jury  had  said  that  the  embargo 
was  unconstitutional. 

Proceeding,  he  said :  "  It  is  also  asserted  in  the  cal- 
"  umny  of  Mr.  Adams  that  the  Judiciary  of  Massa- 
"  chusetts  were  in  league  with  the  opposition  to  the 
"  Embargo,  and  in  this  treasonable  plot.  The  whole 
"related  to  the  Legislature,  the  Judiciary,  and  to 
"the  leading  Federalists  of  Massachusetts,  and  not 
"  to  that  of  any  other  State. 

"  As  to  the  suggestion  of  the  defendant's  counsel 
"  that  the  statement  of  Mr.  Adams  contained  nothing 
"  very  important,  it  was  a  charge  that  the  Legisla- 
"  ture  and  the  Judiciary  and  the  leading  Federalists 
"  of  Massachusetts  were  preparing  to  produce  a  civil 
"  war,  and  yet  it  is  said  that  a  charge  of  this  nature 
"  possesses  but  little  of  atrocity.  But  I  say  that  when 
"  such  charges  are  made  it  exhibits  every  abandon- 
"  ment  of  principle — of  unutterable  depravity.  It  is 
"  an  infamous  falsehood.  The  highest  and  most  ven- 
"  crated  characters  are  traduced.  The  most  high- 
"  minded  of  this  or  any  other  Country  are  vilified. 
"  The  counsellors  and  bosom  friends  of  the  immor- 
"  tal  Washington  are  foully  calumniated ;  those  whom 
"  he  trusted  and  loved  are  thus  disgraced.  They  are 


"  charged  with  the  greatest  act  of  human  depravity 
"  of  which  any  man  can  be  accused,  and  this  charge 
"is  made,  not  only  against  the  living,  but  against 
"  those  who  have  gone  to  their  long  account,  against 
"  the  good  and  the  patriotic  and  the  pious, — against 
"  such  men  as  Ames,  Cabot  and  Dexter. 
"  The  character  of  the  State  is  implicated  in  the  at- 
"  tack  thus  made,  and  if  any  men  ever  existed  whose 
"  characters  are  above  reproach  they  are  those  accused 
"by  Mr.  Adams,  and  afterwards  by  General  Ly- 
"  man,  in  the  libel  complained  of.  General  Lyman  in 
"  his  communication  most  explicitly  states  that  Mr. 
"  Webster  was  recorded  on  the  archives  of  the  G-ov- 
"  ernment  as  a  traitor,  and  no  construction  which  has 
"  been  given  by  the  defendant's  counsel  has  changed 
"  that  allegation,  or  its  nature.  .  .  . 
"  As  to  the  suggestion  of  the  defendants  that  Mr. 
"  Lyman's  article  was  '  scratched  in  a  hurry,'  it  can- 
"  not  be  the  law  of  the  land  that  such  an  excuse  can 
"  justify  him, — that  he  can '  scatter  firebrands,  arrows, 
"  and  death,'  and  then  say,  *  Am  I  not  in  sport?'  Such 
"a  defence  argues  a  most  criminal  inattention  to 
"  consequences,  which  is  of  itself  a  strong  evidence 
"  of  malice.  It  seems  to  be  not  only  legal,  but  moral 
"  turpitude. 

"  The  charge  of  Mr.  Adams  was  left  without  appli- 
"  cation.  It  was  a  blow  in  the  dark,  and  General  Ly- 


(     96     ) 
"  soon  have  had  occasion  to  exclaim  like  Macbeth, 

"Lay  on,  Macdtiff", 
And  damri'd  be  him  that  first  cries,  'Hold,  enough  T"" 

"  It  cannot  be  required  of  him  who  is  libelled  to  go 
"  cap  in  hand  to  the  libeller,  to  ask  for  explanation. 
"  The  defendant  had  time  enough  to  make  an  ac- 
"  knowledgment,  and  he  knew  that  it  was  expected. 
"Mr.  Webster  waited  twelve  days,  in  which  time 
"  no  offer  of  reparation  had  been  made,  from  which 
"  it  was  to  be  inferred  that  no  explanation  was  ever 
"  intended  on  the  part  of  Mr.  Lyman.  The  affidavit 
"  of  Mr.  Lyman  made  it  manifest  that  he  never  in- 
"  tended  to  make  satisfaction  except  upon  a  verdict 
"of  the  jury  and  judgment  of  the  Court.  I  offered 
"  to  enter  a  nol.  pros,  if  Mr.  Lyman  would  make  a 
"  frank  acknowledgment,  which  he  declined  to  do, 
"  and  this  is  inconsistent  with  his  declarations  of  in- 
"  nocent  intentions  with  relation  to  Mr.  Webster." 
This  closed  the  argument  and  the  Chief  Justice 
then  charged  the  jury.  He  began  by  saying,  "It  is 
"  unfortunate  there  ever  was  occasion  for  this  prose- 
"  cution,  unfortunate  that  there  has  not  been  some 
"  amicable  disposition  of  it  upon  explanations  not 
"  derogatory  to  the  honor  of  the  accused,  and  yet 
"  satisfactory  to  the  feelings  of  the  party  aggrieved. 
"  It  is  apparent  but  that  for  some  point  of  etiquette, 
"  to  which  importance  has  been  attached,  such  dis- 


ISAAC  PARKER 

From  a  Painting  in  the  Supreme  Judicial  Court,  Boston 


(     97     ) 

"  position  of  the  case  would  have  taken  place.  But 
"  the  honor  of  the  gentlemen  is  in  their  own  hands, 
"  and  if  that  is  thought  to  create  an  insuperable 
"  barrier  between  them,  we  can  only  regret  that  the 
"controversy  must  be  determined  by  the  ultima 
"ratio  of  peaceable  citizens — a  verdict  of  the  jury 
"  of  their  Country.  In  other  parts  of  the  country  this 
"  ultima  ratio  might  have  been  of  a  different  kind." 

Speaking  of  the  parties,  he  said :  "  The  accused  and 
"  the  accuser  stand  before  you,  gentlemen,  with  high 
"  claims  upon  your  consideration  and  respect.  Thefor- 
"  mer  has  brought  much  reputation  and  dignity  to  this 
"  his  adopted  State  by  his  eminent  talents  in  every 
"  department  where  he  has  been  called  to  act.  His 
"  name  has  pervaded  every  part  of  the  Union,  and 
"  the  fame  of  his  talents  has  gone  far  beyond  its  lim- 
"  its.  The  latter  is  a  native  of  your  own  city,  has  been 
"  deservedly  a  favorite  of  the  citizens,  and  has  been 
"  highly  useful  to  the  Commonwealth  in  civil  and 
"  military  departments,  and  in  support  of  those  in- 
"  stitutions  which  are  the  pride  and  ornament  of  the 
"  city." 

The  Chief  Justice  then  discussed  the  question  of 
the  liberty  of  the  press,  saying, "  No  Country  without 
"  a  free  press  and  an  educated  people  can  long  re- 
"  main  free ;  a  free  press  '  is  the  sustaining,  vital  prin- 
"  ciple  of  freedom — it  proclaims  the  vices  and  abuses 


(     98     ) 

"  of  the  Government — the  rights  of  the  citizen — 
"  the  merits  and  demerits  of  rulers — and  these  are 
"its  proper  and  legitimate  offices.  He  who  would 
"  restrain  it  in  the  exercise  of  these  functions  com- 
"  mits  treason  against  the  fundamental  principles  of 
" civil  liberty.'" 

"But,"  he  said,  "the  press  is  not  invested  with  the 
"  power  of  invading  private  character,  or  of  circulat- 
"  ing  falsehood  against  public  or  private  men.  Power- 
"  ful  as  the  press  is,  it  has  a  master.  That  master  is 
"  the  Law,  which  when  it  transgresses  its  legitimate 
"  bounds  will  punish  the  transgression.  It  is  the  law 
"  — I  believe  it  always  was  the  law — that  a  jury  in 
"  a  criminal  case  can  determine  both  the  law  and  the 
"  fact.*  With  this  popular  guard  over  the  rights  of 
"  the  press  and  the  rights  of  the  citizen,  the  system 
"  of  a  free  press  is  safe  from  everything  but  occa- 
"  sional  errors."  t 

He  then  said  to  the  jury:  "The  decision  of  this 
cause  rests  entirely  with  you,"  and  proceeded  to 
state  the  leading  principles  of  the  law  which  should 
guide  their  deliberations. 

He  first  discussed  the  alleged  libellous  article,  say- 


*  The  Supreme  Court,  in  an  opinion  by  Chief  Justice  Shaw,  held  otherwise 
in  Commonwealth  vs.  Anthes,  5  Gray,  185,  in  1855. 
t  And  yet,  in  1798,  Isaac  Parker  voted  and  spoke  in  Congress  against  an 
amendment  allowing  jurors  to  be  judges  of  the  law  in  prosecutions  under 
the  Sedition  Act. 


(     99     ) 

ing,  "The  defendant  had  a  right  to  publish  a  fair 
"  commentary  upon  a  communication  made  by  the 
"President.  If  that  high  officer  will  commit  his 
"  thoughts  and  opinions,  or  what  he  considers  facts, 
"  to  a  public  newspaper,  they  become  public  property, 
"  and  any  citizen  has  a  lawful  right  to  criticise  or 
"  speculate  upon  the  opinions,  and  to  deny  the  facts 
"  or  comment  upon  them,  but  he  has  not  the  right 
"  to  misrepresent  them,  or  to  draw  unreasonable  in- 
"  ferences  from  them  to  the  prejudice  of  the  reputa- 
"  tion  of  other  persons.  If  he  does  this  wilfully,  in  such 
"  manner  as  to  expose  a  third  party  to  public  indig- 
"  nation,  hatred  or  contempt,  he  cannot  shelter  him- 
"  self  under  cover  of  the  communication  upon  which 
"  he  made  his  commentary.  .  .  . 
"  I  am  of  the  opinion  that  if  you  should  be  satisfied 
"  that  the  gentlemen  named  in  Mr.  Lyman's  article 
"  were  the  persons  whom  Mr.  Adams  intended  to 
"  designate  as  the  leaders  of  the  Federal  party  at  that 
"  time — that  the  insertion  of  those  names  would  not 
"  be  an  unfair  or  unjustifiable  commentary  upon  the 
"  communication — it  would  be  only  filling  up  a  pic- 
"  ture,  the  figures  of  which  were  as  distinct  and  dis- 
"  cernible  to  the  mind,  before  as  after  filling  up.  And 
"  though  this  might  be  a  libel  by  Mr.  Adams,  yet  if 
"the  commentary  introduced  no  new  matter,  and 
"  was  only  a  fair  exposition  of  the  communication, 


"  it  would  not  be  a  libel.  If,  however,  the  insertion 
"  of  Mr.  Webster's  name  was  not  justified  by  the 
"  communication  of  Mr.  Adams,  and  was  done  wil- 
"  fully,  and  the  effect  is  to  expose  Mr.  Webster  to 
"  scorn  or  hatred,  it  is  libellous.  But  if  it  was  done 
"  by  mere  inadvertence  or  mistake,  it  is  not  libel- 
"  lous." 

As  to  the  words  of  the  article,  saying  that  Mr. 
Adams  had  placed  the  names  of  the  gentlemen  men- 
tioned upon  a  secret  record  in  the  archives  of  the 
Government  as  traitors  to  their  Country,  he  said  that 
"  if  this  was  a  mere  rhetorical  flourish,  if  the  jury  are 
"satisfied  that  by  'records'  and  'archives'  is  meant 
"  nothing  more  than  letters  of  Mr.  Adams,  the  re- 
"  mark  is  not  libellous ;  but  if  they  believe  Mr.  Ly- 
"  man  intended  by  this  to  assert  that  this  charge  of 
"  Mr.  Webster's  being  a  traitor  was  absolutely  re- 
"  corded,  it  is  certainly  the  most  serious  part  of  the 
"subject." 

He  then  said,  "  If,  from  the  political  purpose  with 
"  which  the  Jackson  Republican  was  set  up,  — that 
"  is,  of  advocating  the  election  of  General  Jackson, 
"  and  the  defeat  of  Mr.  Adams, — and  from  the  tenor 
"  of  the  article  and  the  circumstances  connected  with 
"  its  publication,  the  jury  believe  that  the  names  of 
"  Mr.  Webster  and  others  were  inserted  only  as  illus- 
"  trating  the  extreme  injustice  of  Mr.  Adams's  accu- 


"  sation  against  the  leaders  of  the  Federal  party,  then 
"  the  article  is  not  libellous." 

"But,"  he  said,  "this  is  a  matter  about  which  you 
"  will  exercise  your  best  discretion.  You  will  not  strain 
"  the  words  to  give  them  this  meaning.  You  will  form 
"  your  opinion  cautiously  and  deliberately  on  the  real 
"  tendency  and  effect  of  the  publication. 
"  As  to  malice,  if  the  publication  was  unjustifiable, 
"  and  its  natural  tendency  was  to  create  hostile  feel- 
"  ings,  aversion  and  hatred  to  Mr.  Webster,  malice 
"  is  inferred  by  law.  This  inference,  however,  may  be 
"  rebutted  by  direct  proof  of  an  honest  purpose  and 
"  an  innocent  design.  Of  this  you  are  the  judges." 

As  to  the  indictment  he  said : "  With  regard  to  the 
"  form  of  the  indictment,  in  which  it  is  supposed  there 
"  is  an  unnecessary  accumulation  of  harsh  epithets, 
"  I  suppose  it  is  in  the  usual  form.  The  prefatory 
"  words  of  general  accusation  are  wholly  immaterial. 
"  If  the  defendant  is  convicted,  it  is  only  of  this  libel; 
"  his  character  in  other  respects  will  stand  as  fair  as 
"  before.  This  is  the  antiquated  dress  of  indictments, 
"which  might  usefully  be  exchanged  for  a  more 
"  modern  costume." 

After  the  charge  the  jury  retired,  and  the  Court 
waited  some  time  for  their  return,  and  then  adjourned 
until  three  o'clock.  The  jury  were  then  called  in,  and 
were  asked  if  they  had  agreed,  to  which  the  foreman 


(     102     ) 

replied  that  they  had  not.  The  Chief  Justice  asked 
them  if  there  was  any  question  "concerning  the  na- 
ture of  the  law,"  or  whether  their  disagreement  was 
wholly  upon  the  facts.  The  foreman  answered:  "/£ 
is  entirely  upon  the  facts.  We  do  not  disagree  upon 
the  law." 

The  Chief  Justice  then  asked:  "  Is  there  any  pro- 
spect of  an  agreement?"  To  which  the  foreman  re- 
plied: "In  my  opinion  there  is  none."  The  jury  were 
then  discharged.* 

The  case  was  continued  until  the  March  Term, 
1829,  and  Mr.  Lyman  recognized  in  the  sum  of 
$1000,  without  sureties,  for  his  appearance  at  that 
time.  In  March,  1829,  the  case  was  again  continued 
upon  the  same  recognizance  until  the  November 
Term  of  the  same  year,  when  the  Solicitor-General 
entered  a  nolle prosequi  in  the  following  words,  writ- 

*  The  trial  was  concisely  and  fairly  reported  in  the  Boston  Daily  Adver- 
tiser, December  18,  The  New  England  Palladium  and  American  Traveller, 
December  19,  the  Jackson  Republican,  and  The  Independent  Chronicle 
and  Boston  Patriot,  December  20,  but  none  of  the  Boston  papers  made 
any  editorial  comment  on  the  case.  The  Advertiser  of  December  22  gave 
the  following  as  the  action  of  the  jury  after  they  had  retired  for  consulta- 
tion. 

"We  publish  the  results  of  several  ballotings  of  the  traverse  jury  in  the 
case.  The  following  is  authentic. 

"1st  ballot  for  conviction  9 

for  acquittal  S 

"2nd  ballot  for  conviction  10 

for  acquittal  2 

"3d  ballot  for  conviction  10 

for  acquittal  S" 

This  is  the  only  information  now  to  be  had  as  to  how  the  jury  really 
stood  and  is  probably  not  very  reliable. 


(     103     ) 

ten  by  him  upon  the  back  of  the  indictment  now 
on  file  in  Court. 

**  NOVEMBER  TERM,  1829. 

"  This  indictment  was  committed  to  a  Jury,  at  the 
"  NoV  Term  of  this  Court  1828.  This  Jury,  after 
"  a  full  and  deliberate  hearing  of  the  evidence,  ar- 
"  guments  of  Counsel,  and  a  learned  and  impartial 
"  charge  from  the  Chief  Justice,  were  not  able  to 
"  agree  upon  a  Verdict.  From  this  fact  and  from  the 
"  peculiar  circumstances  of  this  case,  I  am  of  opinion 
"  that  public  justice  does  not  require  that  it  shall  be 
"  tried  a  second  time.  I  will  therefore  no  further  prose- 
"  cute  this  Indictment;  for  which  I  also  have  the  con- 

"  sent  of  the  prosecutor. 

"DAN'l  DAVIS  SOL.  GEN-I." 

And  thus  this  famous  prosecution  failed  of  its  pur- 
pose and  came  to  nothing.  Mr.  Webster  had  insisted 
that  Mr.  Lyman  had  charged  him  with  a  treasonable 
plot  to  break  up  the  Union,  and  demanded  a  vindica- 
tion from  that  charge  by  the  verdict  of  a  jury  in  the 
County  where  he  and  Mr.  Lyman  lived.  He  had 
prosecuted  the  case  as  a  personal  matter  with  all  the 
resources  at  his  command,  and  with  the  controlling 
influences  of  the  community  on  his  side,  and  yet  he 
failed  to  obtain  a  verdict  of  vindication  from  the 
charge,  obviously  because  the  jury  were  not  con- 
vinced that  the  charge  was  ever  really  made. 


(      104     ) 

A  careful  examination  of  all  the  facts  and  cir- 
cumstances of  the  case  must  convince  any  impartial 
mind  that  Mr.  Lyman  never  intended  to  charge  Daniel 
Webster  with  having  been  at  any  time  engaged  in 
any  treasonable  plot  to  break  up  the  Union.  What 
he  intended  was  to  charge  John  Quincy  Adams  as 
President  with  a  libel  upon  the  leading  Federalists 
of  Massachusetts,  because  Adams  had  said  that  they 
had  engaged  in  1808  in  a  plot  to  break  up  the  Union. 
This  charge  against  Mr.  Adams  necessarily  implied 
that  the  leading  Federalists  were  not  engaged  in  the 
plot  in  which  Mr.  Adams  said  they  were  engaged.  Ly- 
man inadvertently,  and  perhaps  erroneously,  named 
Webster  as  one  of  the  persons  to  whom  the  charge 
of  Adams  applied.  He  did  not  thereby  in  any  fair 
sense  make  the  charge  of  Adams  his  own,  and  it  was 
only  by  an  unfair  and  forced  construction  of  his  lan- 
guage that  it  could  be  claimed  he  had  applied  the 
charges  of  Adams  to  Webster  and  the  others  named 
in  his  article,  or  that  he  had  himself  charged  that 
these  eminent  citizens  had  ever  engaged  in  a  plot  to 
break  up  the  Union. 

Mr.  Webster  required  no  vindication  from  such  a 
charge  if  it  had  been  made  by  Mr.  Lyman.  The  claim 
of  the  Solicitor-General  that  Webster  could  not  re- 
turn to  Washington  unless  vindicated  by  the  verdict 
of  a  jury  was  absurd,  and  his  statement  that  Mr. 


(     105     ) 

Webster's  "children  and  friends  were  interested  in 
wiping  away  the  stain  created  on  the  escutcheon  of 
his  reputation  by  so  foul  a  charge"  was  nonsense.  It 
is  difficult  to  believe  that  Mr.  Webster  himself 
thought  it  necessary  for  his  personal  or  official  vindi- 
cation to  institute  this  extraordinary  prosecution.  He 
was  doubtless  induced  to  do  it  only  as  a  part  of  the 
bitter  political  contest  then  being  waged  between  the 
friends  of  Adams  and  of  Jackson.  The  subsequent 
conduct  of  Mr.  Lyman  towards  Mr.  Webster  shows 
that  he  considered  the  case  as  really  political  and  not 
personal  on  the  part  of  Mr.  Webster.  Of  course,  the 
trial  for  the  time  interrupted  the  previous  intimate 
social  relations  between  Webster  and  Lyman,  but  in 
a  year  or  two  they  became  reconciled  and  remained 
warm  personal  friends  through  life.  The  reconcilia- 
tion came  about  in  this  way:  In  December,  1829, 
Mr.  Webster  married  as  his  second  wife  Miss  Caro- 
line Leroy  of  New  York,  a  former  schoolmate  of 
Mrs.  Lyman,  who  was  a  Miss  Henderson  of  New 
York,  and  Mr.  and  Mrs.  Lyman  were  informed  that 
if  Mrs.  Lyman  thought  proper  to  call  on  Mrs.  Web- 
ster on  her  arrival  in  Boston  the  visit  would  be  re- 
ceived with  pleasure  and  returned.  This  was  done, 
and  after  that  the  families  were  on  intimate  social 
terms. 

Mr.  Lyman  admired  Mr.  Webster,  and  took  his 


(     106     ) 

youngest  daughter,  who  is  now  living  in  Boston,  to 
hear  him  speak ;  and  when  she  visited  Washington, 
while  Mr.  Webster  was  in  the  Senate,  she  also  be- 
came an  admirer  of  Webster,  and  tells  of  his  per- 
sonal charm  in  society,  of  his  impressive  appearance, 
of  how  she  used  to  go  to  the  Senate  only  "to  look 
at  him,"  and  of  how  the  Senate  always  filled  at  once 
when  word  was  passed  that  "Webster  is  up."  When 
Mr.  Webster's  favorite  daughter,  Julia  Appleton, 
died  in  1848,  and  Mr.  Webster  was  in  great  grief, 
Mr.  Lyman  went  to  see  him,  and  they  had  a  very  af- 
fecting interview,  recalling  the  old  times  when  they 
were  both  young  men. 

Closely  connected  with  this  trial  was  the  famous 
controversy  between  John  Quincy  Adams  and  cer- 
tain Massachusetts  Federalists  as  to  his  charges  in 
the  Intelligencer  of  October  21,  1828.  On  Novem- 
ber 26, 1828,  after  Mr.  Lyman  had  been  indicted  and 
before  his  trial,  "  Harrison  Gray  Otis,  Israel  Thorn- 
"  dike,  William  Prescott,T.  H.  Perkins,  Daniel  Sar- 
"  gent,  John  Lowell,  William  Sullivan,  Charles  Jack- 
"  son,  Warren  Dutton,  Benjamin  Pickman,  Henry 
"  Cabot  (son  of  the  late  George  Cabot),  C.  C.  Parsons 
"  (son  of  the  late  Theophilus  Parsons),  and  Franklin 
"  Dexter  (son  of  the  late  Samuel  Dexter),"  wrote  Mr. 
Adams  and  asked  him  to  name  the  leading  Federal- 
ists in  Massachusetts,  who,  as  he  had  charged,  in- 


(     107     ) 

tended  to  dissolve  the  Union  in  1808,  and  to  give 
the  evidence  on  which  the  charge  was  founded.  De- 
cember 30,  Mr.  Adams  wrote  a  long  reply  to  this  let- 
ter reiterating  his  charge,  but  refusing  to  give  names 
or  to  state  evidence  in  support  of  it.  The  signers  then 
published  as  a  supplement  to  the  Boston  Daily  Ad- 
vertiser of  January  24, 1829,  their  letter,  Mr.  Adams's 
reply,  and  "An  appeal  to  the  Citizens  of  the  United 
States,"  in  which  they  solemnly  denied  all  knowledge 
of  any  project  to  break  up  the  Union,  or  of  any  plan 
analogous  to  it  in  1808,  or  at  any  other  time,  and 
severely  commented  upon  Mr.  Adams's  charges  and 
conduct.  They  also  printed  these  papers  as  a  pam- 
phlet, which  passed  through  two  editions  and  was 
circulated  throughout  the  United  States.  Mr.  Adams 
was  much  incensed,  and  prepared  a  long  and  bitter 
reply,  in  which  he  concentrated  and  stated  all  that 
could  be  said  against  the  New  England  Federalists. 
This  reply,  entitled  "Appeal  to  the  Citizens  of  the 
United  States,"  was  not  printed  until  November, 
1877,  when  it  was  published  in  "Documents  Relat- 
ing to  New  England  Federalism,"  by  Henry  Adams, 
pp.  63-329.  A  statement  of  its  charges  is  given  in 
the  Life  and  Letters  of  Cabot,  by  Lodge,  published 
earlier  in  1877,  p.  412  et  seq.  Numerous  allusions  to 
the  preparation  of  it  occur  in  Mr.  Adams's  diary  in 
1829. 


(     108     ) 

This  prosecution  of  Mr.  Lyman  was  one  of  the 
last  acts  in  the  long  reign  of  the  Federal  oligarchy  who 
ruled  Massachusetts  for  nearly  half  a  century.  They 
had  wealth,  social  position  and  political  power,  and 
tolerated  no  opposition  to  their  ascendancy,  and  pun- 
ished all  political  insubordination  with  relentless  se- 
verity. They  were  the  "  Federal  Gentlemen  "  in  Bos- 
ton, the  "Essex  Junto"  in  Essex,  and  the  "River 
Gods"  in  the  Connecticut  Valley.  They  were  accom- 
plished, able  and  patriotic  men,  who  governed  the 
Commonwealth  wisely  and  well  in  its  local  affairs; 
but  they  yielded  slowly  and  with  extreme  reluctance 
to  the  power  of  the  National  Government  under 
the  Federal  Constitution.  The  Federal  Union  was  to 
them  good  as  long  as  it  worked  good  to  their  local 
interests,  and  when  it  did  not,  they  deemed  it  en- 
tirely patriotic  to  consider  the  question  of  its  disso- 
lution; hence  the  Northern  Confederacy  scheme  of 
1804,  the  violent  and  almost  forcible  opposition  to 
the  Embargo  in  1809,  and  the  determined  opposition 
to  the  War  of  1812,  culminating  in  the  nullification 
proceedings  of  the  Hartford  Convention  in  1814. 

But  time  and  commerce  did  their  work.  The  spirit 
of  nationality  slowly  grew  among  the  plain  people, 
and  finally  the  rule  of  the  local  States'  rights  states- 
men came  to  an  end.  The  first  successful  revolt  was 
in  Boston,  when,  in  1831,  Harrison  Gray  Otis  was 


(     109     ) 

defeated  for  Mayor,  and  in  1833,  within  four  years 
after  the  Federal  oligarchy  had  placed  Theodore 
Lyman  in  the  dock  as  an  indicted  criminal,  he  was 
elected  Mayor  as  the  "Jackson  Candidate." 


APPENDIX 

COMMONWEALTH  OF  MASSACHUSETTS 

AN  ACT  to  secure  the  People  of  this  Commonwealth  against 
Unreasonable,  Arbitrary,  and  Unconstitutional  Searches  in  their 
Dwelling-Houses 

W  HEREAS  it  is  declared  and  provided  in  and  by  the  fourteenth 
article  of  the  Declaration  of  Rights  of  the  inhabitants  of  the 
Commonwealth  of  Massachusetts,  that  "  Every  subject  has  a 
right  to  be  secure  from  all  unreasonable  searches  and  seizures 
of  his  person,  his  house,  his  papers  and  possessions;  and  that 
all  warrants  are  contrary  to  this  right,  if  the  cause  or  founda- 
tion of  them  is  not  previously  supported  by  oath  or  affirma- 
tion: 

And  whereas  it  is  also  provided  in  and  by  the  sixth  article 
of  the  amendments  to  the  Constitution  of  the  United  States, 
that  "  The  rights  of  the  People  to  be  secure  in  their  persons, 
houses,  papers  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  warrants  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and 
particularly  describing  the  place  to  be  searched  and  the  per- 
sons to  be  seized.  And  it  being  the  duty  of  the  Legislature  to 
protect  the  Citizens  of  this  State  against  the  infringements  of 
their  essential  rights,  and  to  provide  effectually  for  the  pun- 
ishment of  those  who  violate  them :  Therefore, 
Sec.  1.  Be  it  Enacted  by  the  Senate  and  House  of  Representa- 
tives in  General  Court  Assembled,  and  by  the  authority  of  the 
same,  That  if  any  person  or  persons,  after  the  passing  of  this 


(     112     ) 

act,  in  contempt  and  violation  of  the  said  provisions  in  the 
Declaration  of  Rights  and  Constitution  aforesaid,  shall  enter 
any  dwelling-house  of  any  Citizen  of  this  Commonwealth,  sit- 
uate within  the  same,  to  search  the  same  house  for  any  specie 
or  any  articles  of  domestic  growth,  produce  or  manufacture, 
under  pretence  of  any  authority  whatsoever,  without  or  against 
the  consent  of  the  owner  of  such  Dwelling-house,  and  not  hav- 
ing a  warrant  therefor,  supported  by  oath  or  affirmation,  and 
issued  by  a  Magistrate  having  competent  authority  to  issue 
the  same,  every  person  so  offending  shall  be  adjudged  to  be 
guilty  of  a  high  misdemeanor,  and  shall,  on  conviction  thereof 
in  the  Supreme  Judicial  Court,  be  sentenced  by  said  Court  to 
pay  a  fine  to  the  use  of  the  Commonwealth,  not  exceeding  the 
sum  of  five  hundred  dollars,  and  to  suffer  imprisonment  in  the 
common  Gaol  of  the  County  in  which  the  conviction  may  be, 
for  a  term  of  time  not  exceeding  six  months,  or  either  of  said 
punishments,  according  to  the  circumstances  and  aggravation 
of  said  offence. 

Sec.  2.  Be  it  further  Enacted,  That  if  any  person  or  persons, 
after  the  passing  of  this  Act,  in  contempt  and  violation  of  the 
said  provisions  in  the  Declaration  of  Rights  and  Constitution, 
aforesaid,  shall  enter  any  Dwelling  House  of  any  Citizen  of 
this  Commonwealth,  situate  within  the  same,  being  armed  with 
any  offensive  or  deadly  weapon,  to  search  the  same  house  for 
any  specie,  or  any  articles  of  domestic  growth,  produce  or  manu- 
facture, under  pretence  of  any  authority  whatsoever,  without 
or  against  the  consent  of  the  owner  of  such  Dwelling  House, 
and  not  having  a  warrant  therefor,  supported  by  oath  or  affir- 
mation, and  issued  by  a  Magistrate,  having  competent  au- 


(      113     ) 

thority  to  issue  the  same,  every  person  so  offending,  shall  be 
adjudged  to  be  guilty  of  a  high  misdemeanor,  and  shall,  on 
conviction  thereof,  in  the  Supreme  Judicial  Court,  be  sentenced 
by  said  Court,  to  pay  a  fine  to  the  use  of  the  Commonwealth, 
not  exceeding  the  sum  of  One  Thousand  Dollars,  and  to  suffer 
imprisonment  in  the  common  Gaol  in  the  County  in  which  the 
conviction  may  be,  for  a  term  of  time  not  exceeding  twelve 
months  or  either  of  said  punishments,  according  to  the  circum- 
stances and  aggravation  of  said  offence — Provided,  however, 
that  nothing  in  this  act  shall  be  construed  to  affect,  or  in  any 
manner  impair,  the  remedy  which  any  person  might  have  had 
for  damages  in  a  civil  action  if  this  Act  had  not  been  passed. 

In  the  House  of  Representatives ',  Feb.  25,  1809,  this  bill  hav- 
ing had  three  several  readings  passed  to  be  enacted. 

TIMOTHY  BIGELOW,  Speaker 

This  bill  having  had  two  several  readings  passed  to  be  en- 
acted. H.  G.  OTIS,  President 

A  comparison  of  this  bill  with  the  provisions  of  the  Em- 
bargo Act  of  January  9, 1809,  shows  that  it  made  the  Acts  au- 
thorized by  the  United  States  Statute  crimes  under  the  State 
Statute,  and  was  in  effect  a  State  law  nullifying  the  law  of 
Congress. 

Lieutenant-Governor  Levi  Lincoln,  who  had  become  acting 
Governor  by  the  death  of  Governor  Sullivan,  vetoed  this  bill, 
and  on  its  return  by  him  to  the  Senate  with  his  objections,  the 
vote  upon  passing  it,  notwithstanding  his  objections,  was  nine- 
teen to  eighteen. 


INDEX 


A7T    against     unconstitutional 
Searches  of  Dwellings,  20, 1 1 1 , 
112,  113 

Adams,  Henry,  107 

Adams,  John,  20 

Adams,  John  Quincy,  3,  6,  7,  8,  9, 

10,  11,  28,  69,  70,  71,  73,  74,  76, 

80,  81, 84,  85,  86,  87,  88,  89,  90,  92, 

93, 94, 95, 99, 100, 104, 105, 106, 107 
Advertiser,  Boston  Daily,  5,  note  on 

6,  note  on  102,  106 
Affidavit  of  Theodore  Lyman,  Jr., 

47  et  seq.,  68,  69,  80 
Alien  and  Sedition  Acts,  20 
Ames,  Fisher,  84,  87,  94 
Arguments  in  trial 

Davis,  Daniel,  64-66,  92-96 

Dexter,  Franklin,  67-71 

Hubbard,  Samuel,  80-91 
Athenaeum,  Boston,  33 
Austerlitz,  12 
Austin,  James  Trecothic,  31,  51  and 

note,  75 

BIGELOW,  TIMOTHY,  113 
Boston  at  time  of  trial,  30,  31,  32, 33 
Boston  City  Hall,  62 
Boston  Common,  77  and  note 
Boston  Court  Houses,  62  and  note 
Boston  Directory,  31,  63 
Boston  Farm  School,  61 
Burr,  Aaron,  24 
CABOT,  GEORGE,  24  and  note,  84,  94, 

106,  107 

Cabot,  Henry,  106 
Callender,  Jonathan,  32,  45,  46 
Centinel,  Columbian,  note  on  6,  31 
Charge  to  jury  by  Judge  Parker, 

96-101 
Churches  in  Boston  in  1828 

Church  of  the  Holy  Cross,  33 

First  Church,  33 


New  South,  33 
Trinity,  33 

Clay,  Henry,   Letter  to  Webster 
from,  4 

Constitution,  Federal,  2,  25 
Court  Houses  in   Boston,  62  and 

note 

Crawford,  William  H.,  86 
Curtis,  Charles  Pelham,  29  and  note, 

32,  67,  74,  76,  79 

Curtis,  George  Ticknor,  3,  4 
DAVIS,  DAHiEL(Solicilor-General),  1, 
31,  35  and  note,  45,  52,  63,  64,  66, 
67,  71,  73,  78,  80,  82,  87,  91,  102, 
103,  104 

Davis,  John,  32  and  note 
Dawes,  Francis  O.,  67 
Decrees 

Berlin,  5,  12,  27 

Milan,  5,  13,  27 
Dexter,  Franklin,  32,  46,  63,  67  and 

note,  68,  71,  76,  88  and  note,  106 
Dexter,  Samuel,  7  and  note,  8  and 

note,  10,  note  on  32,  63,  84,  87, 

88  and  note,  94,  106 

Dutton,  Warren,  32,  77  and  note, 
106 

Dwight,  Theodore,  24 
ELIOT,  CHARLES  W.,  note  on  60 
Eliot,  Samuel  A.,  note  on  60 
Embargo  Acts,  2,  5,  6,  9,  12,  14,  15, 

16,  17,  18,  19,  20,  21,  22,  23,  26, 

71,  72,  73,  81,  82,  87,  90,  93,  108, 

113 

Petitions  for  relief  from,  19,  20 
"Era  of  good  feeling,"  note  on  75 
Everett,  Edward,  3 
FANEUIL  HALL,  8 
"Federal  Gentlemen,"  108 
Fletcher,  Richard,  30  and  note,  32, 

52,  74,  79 


Force  Act,  18,  19,  20,  22 

France,  12,  23 

GALLATIN,  ALBERT,  14 

Gaol,  note  on  62 

George  III,  5 

"Gerrymander,"  note  on  75 

Giles,  William  B.,  6,  8 

Griswold,  Roger,  24 

HARTFORD  CONVENTION,  2,  4,  note 

on  10,  24,  25,  26,  28,  84,  108 
Harvey,  Peter,  3 
Hubbard,  Samuel,  31,  46,  63  and 

note,  73,  80,  82,  83,  84,  85,  86,  87, 

88,  89,  90,  91 
INDICTMENT  against  Theodore  Ly- 

man,  Jr.,  35  et  seq.  Judge's  com- 
ment on,  101 
"Infamous  Libel,"  42,  69,  85,  88, 

92 

Intelligencer,   National,   Washing- 
ton, 6,  7,  9,  58 

Interrogatories  put  to  Lyman,  56 
JACKSON,  ANDREW,  6,   33,  62  and 

note,  86,  105,  109 
Jackson,  Charles,  106 
Jackson  Republican,  6  and  note, 

9,  29,  58,  65,  67,  74,  75,  76,  78,  79, 

80,  100,  note  on  102 
Jefferson,  Thomas,  5,  6,  7,  8,  9,  14, 

15,  16,  18,  19,  22,  23,  26,  82 
Johnson  Hall,  62 
Jurisdiction    of   Supreme  Judicial 

Court  in  Libel  Case,  34,  76,  79 
Jury  in  Libel  Trial,  63 
LANMAN,  CHARLES,  3 
Leroy,  Caroline,  105 
Liberty  of  the  press,  65,  66,  97,  98 
Lincoln,  Levi,  113 
Lodge,  Henry  Cabot,  3,  note  on  35, 

107 
Lowell,  John,  32  and  note,  note  on 

77,  106 

Lyman,  Isaac,  note  on  60 
Lyman  School,  61  and  note 
Lyman,  Theodore,  Jr.,  biography, 

60 
Lyman,  Theodore,  note  on  60 


MADISON,  JAMES,  23,  26 

Mall.  See  Boston  Common 

Mansfield,  Lord,  92 

Merchants'  Hall,  75  and  note 

Mercury,  Massachusetts,  note  on  6 

McDuffie,  George,  95  and  note 

Mills,  Elijah  H.,  7,  10,  87 

Minot,  William,  note  on  35 

NANTUCKET,  16 

Napoleon,  5,  12,  13,  82 

Nelson,  Lord,  12 

Nolle  prosequi,  102 

OBJECTIONS  to  affidavit  of  Lyman, 

52  et  seq. 

Opening  argument,  64 
Orders  in  Council,  5,  12,  13,  14,  23 
Orne,  Henry,  31,  74  and  note,  76 
Otis,  Harrison  Gray,  3  and  note, 

7,  9,  31,  note  on  62,  77,  78,  84,  87, 

106,  108,  113 
PARKER,  ISAAC,  2  and  note,  32,  52, 

57,  63,  72,  73,  80,  91,  96,  97,  98 

and  note,  99,  100,  101,  102 
Parsons,  C.  C.,  106 
Parsons,  Theophilus,  84,  106 
Perkins,  T.  H.,  106 
Pickering,  Timothy,  22  and  note, 

23,  26,  28,  60,  note  on  61 
Pickman,  Benjamin,  106 
Plumer,  William,  24 
Poor  debtors,  17 
Pray,  Isaac,  31,  45 
Prescott,  William,  7,  10  and  note, 

78,  106 

Prison  Lane,  note  on  62 
Putnam,  John,  67 
QUINCY,  JOSIAH,  7,  8  and  note,  10, 

31 

Quincy,  Josiah,  Jr.,  31 
REPORT  of  trial  in  newspapers,  note 

on  102 

"River  Gods,"  108 
Rockingham  Memorial,  27,  72,  73 
Russell,  Benjamin,  7, 10,  31,  74  and 

note,  75,  87 
SARGENT,  DANIEL,  106 


(     117     ) 


Scandalum  magnatum,  35 
Sentinel.  See  Centinel 
Shaw,  G.  Rowland,  note  on  38 
Shaw,  Mrs.  G.  H.  (Miss  Lyman), 

106 

Ships,  American,  12 
States'  Rights,  2,  20,  21,  22,  24,  27, 

28,  29,  73,  90 

Story,  Joseph,  22  and  note 
Sullivan,  William,  106 
TARIFF,  13  and  note 
Thacher,  Peter  Oxenbridge,  34  and 

note 
Testimony  at  trial 

Austin,  James  T.,  75,  76 

Curtis,  Charles  P.,  79 

Dawes,  Francis  O.,  67 

Dutton,  Warren,  77 

Orne,  Henry,  74,  76 


Putnam,  John,  67 
Russell,  Benjamin,  74,  75 
Webster,  Daniel,  72,  78 
Williams,  Henry,  75 

Thorndike,  Israel,  7,  10,  32,  33,  38 

and  note,  77,  106 
Trafalgar,  12 
Trumbull,  Jonathan,  21 
VIRGINIA,  note  on  25 
WAR  OF  1812,  23,  27,  29,  108 
Washington,  George,  81,  93 
Webster,  Caroline,  105 
Webster,    Daniel,    biography,   59, 

60 

Webster,  Julia  Appleton,  106 
Welles,  John,  7,  10  and  note,  32 
Whitman,  John  W.,  5 
Williams,  Henry,  75 


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